Category: Constitutional Law

Columns, Congress, Constitutional Law, Lawyering, Media, Politics

Mueller’s Mount Sinai Moment Leaves Media With A Crisis of Faith

Below is my column in The Hill newspaper on the press conference held by Special Counsel Robert Mueller and his refusal to answer questions from the media (or any questions from Congress beyond what is written in his Report). Mueller not only demanded silence but faith from the media, which surprisingly obeyed. Few reporters noted the direct contradictions in Mueller’s brief statement or the many unanswered questions that he left in his imperious wake. Since Attorney General Bill Barr has already testified on the process and his decisions related to the Report, there was nothing preventing Mueller from answering questions about his own decisions. Instead, Mueller simply said that the media would listen and remain silent . . . and the media dutifully complied.

Here is the column:

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Columns, Constitutional Law, Criminal law, Politics, Society

Mueller’s Lack Of Explanations Raises New Questions of His Motivations On Three Key Decisions

Below is my column in The Hill newspaper on three unanswered and troubling questions for Special Counsel Robert Mueller. The concerns over Mueller’s motivations was heightened by the justifications that he has offered for some of his decisions like not reaching a conclusion on the weight of the evidence on obstruction. Many of us view Mueller’s rationale (based on the DOJ policy not to indict a sitting president) to be not just unprecedented but illogical. Putting aside my long disagreement with the argument that a president is immune from indictment, that policy (and the underlying memos) say nothing about a Special Counsel reaching conclusions on the evidence of possible criminal acts. Indeed, that is the core purpose of a Special Counsel. If one rejects the rationales of Mueller, you are left with a question of motivation in maintaining these positions.

Here is the column:

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Constitutional Law, Politics

WA Supreme Court Upholds Fine Against Presidential Electors Who Failed To Cast Vote In Accordance With Popular Vote

By Darren Smith, Weekend Contributor

The Washington Supreme Court upheld the imposition of a thousand dollar fine against three Presidential Electors who violated their oath by voting in the Electoral College for candidates other than those winners of the popular vote in the 2016 presidential election. In this latest episode of electioneering in American politics, individuals took it upon themselves to decide who they believed deserved election and not support that of the common voter.

In this case, three electors reportedly perceived that then Candidate Donald Trump would win the election and to at least in a hail Mary type of stunt forestall this by casting their vote for Colin Powell instead of Hillary Clinton who won the state’s popular vote. Pursuant to the Constitution, if a candidate fails to receive an absolute majority of the Electoral College Vote the election is then decided by the House of Representatives, which the electors reportedly perceived would be more conducive to a win by Clinton.

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Bizarre, Constitutional Law, Criminal law, Free Speech, International, Media

Poll: Only 18 Percent Of Germans Feel Free To Voice Views In Public

For years, we have discussed the unrelenting attacks on free speech in Europe with the expansion of hate speech laws and the general criminalization of speech, including international speech crimes. Some in the United States would like to follow down that dangerous path (and universities are reinforcing the view of the need to regulate speech). The implications of such anti-speech policies are evident in Germany where a survey, conducted by the Institut für Demoskopie Allensbach(and published in the Frankfurter Allgemeine Zeitung) found that only 18 percent of Germans feel free to express their views in public. It is the most vivid example of how Europeans are learning to live without free speech. Undeterred, Annegret Kramp-Karrenbauer, the successor to Angela Merkel, is now calling on greater limits on free speech during election periods — a concept that would normally be viewed as counterintuitive outside of the new European model.

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Academics, Bizarre, Constitutional Law, Free Speech, Media, Politics, Society

Trump Again Calls For Changing Libel Laws After NYU Professor’s Faked Quote [Updated]

President Donald Trump has previously — and unwisely — called for changing libel laws to combat what he calls “fake news.” I have previously criticized  Trump for his calls for greater liability of the media for its coverage of the controversies surrounding his Administration, including his desire to sue Saturday Night Live.  Now, due to the publication of a false quote from Trump by New York University Professor Ian Bremmer, Trump is again calling for a change in the law and ignoring that our defamation standard is anchored in the first amendment. Ironically, Trump himself was recently accused of posting a doctored clip of Nancy Pelosi and has repeatedly retweeted false or defamatory statements.

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Columns, Constitutional Law, Criminal law, Free Speech, Justice, Media, Politics, Society

The Assange Case Could Prove The Most Important Press Case In 300 Years

Below is my column for BBC on the Assange espionage charges. As I have written, I believe that Attorney General Bill Barr is dead wrong on these charges — a view apparently shared by at least two of the prosecutors on the team. Until now, President Donald Trump’s disturbing rhetoric against the media has been disconnected from actual moves against the media with the exception of suspending press passes or changing rules for the White House press corp. This is a quantum leap in the wrong direction. Indeed, this prosecution could easily become the most important press case since John Peter Zenger.

Here is the column:

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Constitutional Law, Criminal law, Free Speech, International, Media

Bill Barr Is Wrong On Assange

Bill Barr has been (in my opinion) wrongly attacked for many of his actions with regard to the Special Counsel Report. Indeed, I defended his decisions in print and I testified in favor of his confirmation. I still believe that he is an excellent choice for Attorney General. However, on the charges against Julian Assange, he is wrong. Dead wrong. As I stated in a recent column, the use of the Espionage Act strikes at the heart of the First Amendment. Now, the Washington Post is reporting that two prosecutors involved in the Wikileaks case argued against the new charges.

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Congress, Constitutional Law, Criminal law, Media

Pelosi Reaffirms No Impeachment . . . Because Trump Wants To Be Impeached

Speaker Nancy Pelosi held a press conference today that left far more questions than she answered . . . except for some members of the press. While CNN asked the more obvious question of why Pelosi keeps saying that Trump is committing impeachable acts but barring impeachment, the other reporters quickly moved to softball questions and the short time ran out, as did Pelosi. However, Pelosi did reaffirm that Trump should not be impeached because he wants it too much. That is consistent with those other principled stances like (1) serial killers should not be arrested if police think that they really want to be caught; (2) suicide jumpers should not be stopped if they really want to be rescued; and (3) bulimia victims should be given more food if you think that they just want you to intervene. The original question is still the operative question: if Trump is committing crimes and a cover up, as Pelosi alleges, why does it matter what Trump wants as opposed to what the Constitution says.

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Constitutional Law, Criminal law, Free Speech, Media, Society

France Continues Crackdown On Journalists

France appears to be launching a crackdown on the free press with the same vigor it has shown in destroying free speech guarantees in the nation famous for its 1784 Declaration of the Rights of Man and of all the Citizen. Recently, we discussed how the French government was criminally investigating journalists who uncovered false statements by French officials on the country’s role in the war in Yemen. Now, a senior reporter at the renowned French Le Monde has been called in for questioning after Ariane Chemin revealed that a security aide to President Emmanuel Macron has been summoned for questioning by the domestic intelligence service.

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Congress, Constitutional Law, Courts, Justice, Lawyering

Trump Administration Ignored Internal Legal Opinion In Withholding Tax Records

I recently testified in the House Judiciary Committee that the Congress must challenge the refusal of the Trump Administration to turn over certain records and to bar certain witnesses from oversight investigations. While I also disagreed with some of Congress’s actions, the Trump Administration has cannot withhold material from oversight authority on the basis of undeclared privileges or ill-defined objections. This is the case in the refusal to turn over tax records demanded by Congress. As I stated earlier, the House has made only generalized claims of a legislative purpose for such records. Nevertheless, the law clearly favors Congress in seeking such material. Notably, the Trump Administration has not claimed executive privilege but only that the Committee lacks a legislative purpose. That is not enough. Now, it appears that the Administration was warned by its own confidential Internal Revenue Service legal memorandum that it would be violating the law by withholding the records without an executive privilege claim. It ignored the legal memorandum and refused the congressional demand.

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Constitutional Law, Criminal law, Free Speech, International, Media, Politics, Religion

Florida To Impose Sweeping Anti-Semitism Ban On Florida Schools

Florida Republican Gov. Ron DeSantis is reportedly planning to travel to Israel and use the trip to sign a bill that imposes a sweeping anti-Semiticism law that raises serious free speech implications. Florida and other states are enacting a bill being duplicated through the country that would ban statements that “making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as a collective.” I have previously raised my concerns over the curtailment of free speech from such laws as well as bans on support for boycotts of Israel. While courts have struck down the boycott laws, supporters are still trying to curtail speech under ill-defined hate speech models. Recently, the Israeli ambassador to the United Nations called for an international ban on anti-Semitic speech.

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Academics, Constitutional Law, Free Speech

Poll: Almost Half Of College Students Do Not Believe First Amendment Protects Hate Speech

We have previously discussed how speech codes and regulations are changing the way students are viewing free speech. There is now a steady message for students from elementary school to college that speech must be regulated and that even people can be punished for not just hate speech but the ill-defined category of “microaggressive” speech. Past polls showed that one-third of students believed that violence is justified in dealing with some exercises of speech. Now a survey of college students found almost half do not believe that hate speech is protected by the First Amendment — a chilling indication of the collapsing support for traditional free speech values on our campuses.

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Congress, Constitutional Law, Politics

Report: Democrats Hold Closed Door Caucus Rejecting Impeachment Move . . . Without A Single Dissenting Voice

Democrats, including Speaker Nancy Pelosi, have been hitting the airways to declare that the evidence of impeachable acts by President Donald Trump is not only clearly established by the Special Counsel Report but additional impeachable acts are unfolding every day. However, on Wednesday, a closed door caucus was held with a very different and apparently uncontested view: no impeachment. I have previously written about the disconnect of what Democrats are telling their voters and what they are actually saying to each other. Since before the midterm election (when impeachment was a big sell for giving the Democrats the majority), I do not believe that the House leadership ever intended to allow an impeachment to move forward against Trump because it is not in their political interests.

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Congress, Constitutional Law, Criminal law

Turley Testifies In House Judiciary Committee On Trump Executive Privilege Assertions

I will be testifying this before the House Judiciary Committee on President Donald Trump’s assertion of executive privilege and congressional oversight. The Hearing will be held 10 a.m. on Wednesday, May 15th, in Room 2141 in the Rayburn House Office Building. My testimony is linked available below.

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