Category: Constitutional Law

Congress, Constitutional Law, Military

Trump Orders Defense Department To Publicly Confirm Assassination Of Iranian General

In a break from long-standing intelligence practices, President Donald Trump ordered the Defense Department to confirm that the United States was behind the missile strike that killed Qassem Soleimani, the commander of Iran’s secretive Quds Force, and six others, including Iraqi militia commander Abu Mahdi al-Muhandis. The public acknowledgement of responsibility is a game changer. While Iran (like most of us) assumed it was the United States, the public confirmation of the assassination removes any doubt and forces Iran and Iraq to deal with a direct and official attack. International law treats the targeted killing of a ranking military figure on foreign sovereign soil as a presumptive act of war. As always however there is no shortage of hypocrisy in the condemnations from Capitol Hill.

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Academics, Columns, Congress, Constitutional Law

Pelosi’s Half Right Constitutional Claim Leaves The House All Wrong

Below is my column in The Hill newspaper on the position of Harvard Law Professor Laurence Tribe that the blocking the submission of the impeachment to the Senate by Speaker Nancy Pelosi is both constitutional and commendable. He is half right but the House is entirely wrong in its gaming of the system in this fashion.

Here is the column:

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Congress, Constitutional Law, Media, Politics

Rep. Green Tells MSNBC That The “Genesis” For Trump’s Impeachment Began Before He Was Elected

Rep. Al Green (D, Tex.) has remained the most quoted Democratic member . . . . by Republicans. Green has given Republicans quotable gems to show a long-standing and unending effort to impeach Trump from his very first day in office. His most popular GOP talking point is “I’m concerned that if we don’t impeach this president, he will get reelected.” However, Green has also said recently that the House may continue to impeach Trump and has called for an array of clearly illegitimate articles of impeachment. Now, Green has given Republicans a quote to reinforce its narrative by declaring that the “genesis” of the impeachment began before Donald Trump was even elected. That is likely to be added to the top Green quotes for the upcoming Senate trial.

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Columns, Congress, Constitutional Law, Criminal law, Lawyering

What If Monica Actually Had Taken The Stand?

Below is my column in the Wall Street Journal on the issue of witnesses at impeachment trials and how they can have a determinative impact on the outcome of such trials. The best example remains the Senate trial of Bill Clinton and the ultimate “what if.” What if Monica Lewinsky actually took the stand in the Senate trial?

Here is the column:

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Columns, Congress, Constitutional Law

The Impulse Buy Impeachment: How The Democrats Yielded To The Holiday Frenzy Over Facts

Below is my column in the Los Angeles Times on the impeachment of President Donald Trump. The failure to take a little more time to secure additional witnesses (or court orders against the Administration) has already come back to haunt the House. If the Senate now decides to try the President on the thin record of the House, the House will have given the White House an easy avenue to acquittal. If the House was not willing to seek to compel the testimony of these witnesses, it will be in a poor position to demand that the Senate now complete the record that it prematurely closed with its vote. Had they waited just a couple months, they might have been able to secure some of these witnesses, particularly if they had not burned four months without seeking to compel witnesses like Bolton or, bizarrely, withdrew its subpoena for Kupperman before a court could rule.

Here is the column:

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Academics, Constitutional Law, Media, Politics

“There’s No Impeachment”: Trump Repeats Feldman’s Flawed Interpretation Of The Constitution

I recently criticized the position of my fellow witness from the Trump impeachment hearing, Professor Noah Feldman, that Trump is not technically impeached until the articles of impeachment are referred to the Senate. I have known Noah for years and respect him but this theory is utterly without foundation in the text or history or logic of the Constitution. The theory is a chimerical conflation of the impeachment and removal provisions. President Donald Trump however has seemingly embraced the theory that he is not actually impeached. Even as mockery, Feldman’s theory should not be further referenced in my view as credible. The President’s status is clear. He stands impeached, but untried.

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Academics, Constitutional Law, Free Speech, Religion

Pakistani Professor Sentenced To Death For Blasphemy
Flag of Pakistan

We have yet another example of the perils facing academics in some Muslim countries with a death sentence handed down by a Pakistani court against Professor Junaid Hafeez, 33, because he allegedly posted derogatory remarks against Mohammed on social media. Many of our closest allies routinely flog or kill those who simply question religious dogma.

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Academics, Congress, Constitutional Law

Trump Stands Impeached: A Response To Noah Feldman

In the House Judiciary Committee, I had some fundamental disagreements with my friend Professor Noah Feldman on issues ranging from the basis for impeachment on the basis of specific crimes (bribery, extortion, campaign finance violations, and obstruction of justice) as well as his claim that the legal definition of these crimes are immaterial to their use in impeachment. Ultimately, the Judiciary Committee dropped those four theories and went forward with the two articles that I testified would be legitimate, if proven: abuse of power and obstruction of Congress.

Now, however, we have another disagreement. Feldman has written in Bloomberg News that Trump is not actually impeached until the articles of impeachment are transferred to the Senate. I disagree and believe that Feldman is conflating provisions concerning removal with those for impeachment. Frankly, I am mystified by the claim since I see no credible basis for maintaining this view under either the text or the history of the Constitution.

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Congress, Constitutional Law, Courts, Politics

Federal Appellate Court Strikes Down Obamacare’s Individual Mandate

I have long been critical of the individual mandate under the Affordable Care Act or Obamacare (See, e.g., here and here and here). Yesterday, the Fifth Circuit Court of Appeals handed down a major 2-1 ruling striking down the mandate as unconstitutional. The litigation however will continue over the viability of the rest of the Act without the individual. As discussed in an earlier column, pulling out the individual mandate creates a Jenga-like dilemma for the courts.

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Columns, Congress, Constitutional Law, Politics

“Let Them Impeach And Be Damned”: History Repeats Itself With A Vengeance As The House Impeaches Donald Trump

Below is my column in the Hill newspaper on the striking similarities between the Johnson and Trump impeachments — a comparison that should be unsettling for most voters as history repeats itself with a vengeance.

Here is the column:

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Constitutional Law, Courts, Politics

New York Court Dismisses State Charges Against Manafort

I previously wrote about what I viewed as a dangerous trend among New York Democratic politicians pledging to charge former Trump campaign chair Paul Manafort under state law to negate any benefit from a federal pardon by President Donald Trump. Democrats rallied supporters to the dubious cause of watering down the state protections against double jeopardy. It was the ultimate example of the mania surrounding Trump where citizens would take an axe to their own constitutional protections to get at Trump and his associates. The highly dubious effort was led by New York state attorney general Letitia James and, thankfully, it has failed. The New York courts are not nearly as dismissive of individual rights. The state charges were thrown out today on the basis of double jeopardy. The question is now whether this will be a prelude to a presidential pardon.

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Congress, Constitutional Law, Politics

An “Indelible Record”: President Sends Incendiary Letter To The House Speaker On Eve Of His Impeachment

President Donald Trump lashed out at Speaker Nancy Pelosi and the House Democrats yesterday on the eve of today’s impeachment vote. The letter, which can be read here, unleashed invective and angry responses to the expected impeachment. While the President quotes me in the letter, most of the letter has the signature style of the President and immediately drew objections over its tenor and assertions. Pelosi called the letter “ridiculous” and “sick.”

The President declares “It is time for you and the highly partisan Democrats in Congress to immediately cease this impeachment fantasy and get back to work for the American People. While I have no expectation that you will do so, I write this letter to you for the purpose of history and to put my thoughts on a permanent and indelible record.”

This letter will certainly prove indelible.

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Bizarre, Congress, Constitutional Law, Criminal law

Swalwell: Failing To Turn Over Documents Is Proof Of Guilt

Rep. Eric Swalwell, D-Calif., has made sensational statements into a signature style over the last couple years. However, this week Swalwell appears to be contesting the touchstone of due process: the presumption of innocence. On Tuesday, Swalwell declared that, President Donald Trump refuses to give Congress the documents and witnesses that it has demanded, he is clearly guilty of all charged offenses. Swalwell declared “We can only conclude that you’re guilty.” Trump has gone to the courts to challenge the demands under presidential immunities and privileges.

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