Category: Constitutional Law

Court Finally Releases Chelsea Manning After Suicide Attempt

I have previously objected to how the Justice Department uses grand juries to punish certain individuals who refuse to cooperate with federal investigations. This concern was heightened during my representation of Dr. Sami Al-Arian who signed a plea bargain with the understanding that, after serving his time, he would be allowed to leave the country. Instead, he was forced before a grand jury and remained in jail for years as a matter of contempt. The Justice Department often prolongs the incarceration while piling on fines to ruin individuals who refuse to cooperate. That was the case with Chelsea Manning. Like Al-Arian, she had already served time for her role in the Wikileaks controversy but the remainder of her sentence was commuted by President Barack Obama. The Justice Department proceeded to pull her before another grand jury where she refused to testify (like Al-Arian). After a long incarceration and an equally excessive 256,000 in fines, she finally tried to kill herself this week by hanging in the Alexandria jail. Only then did U.S. District Judge Anthony Trenga finally order her release.

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The Road Rage Defense: How The Media Has Ignored A Pattern Of Democratic Attacks On The Judiciary

Below is my column in The Hill newspaper on the recent threat from Sen. Chuck Schumer directed at two members of the Supreme Court. The column explores how this attack was neither isolated nor unique. Despite any substantive coverage in the media, Democratic politicians are increasingly attacking the Court and the judicial system. I have joined in the criticism of President Donald Trump over his verbal assaults on judges, Yet, there is the paucity of attention given to the same types of attacks coming from Democrats.

Here is the column:

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A Less Than Noble Moment: Trump Campaign Sues CNN For Defamation

President Trump’s re-election campaign filed a defamation action in Georgia against CNN on Friday for publishing an opinion piece by Larry Noble, a CNN contributor and former general counsel for the Federal Election Commission. Based largely on an opinion piece by a well-known Trump critic, the lawsuit is weak and unlikely to succeed. The complaint offers more heat than light as a defamation action.

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Chief Justice John Roberts Heading Down Collision Course With Himself

Below is my column in The Hill newspaper on critical cases facing Chief Justice John Roberts this term as his impact as the new swing vote on the Court becomes more clear. In the oral arguments for Whole Woman’s Health v. Hellerstedt, Chief Justice Roberts appeared to be following his prior position in favor of state laws imposing conditions on abortion services. However, in that case and the recently accepted Obamacare appeal, Roberts will be exercising his swing vote while carrying a fair amount of baggage from earlier decisions.

Here is the column:

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Roberts Rebukes Schumer For Threatening Justices With Retaliation Over Rulings

In an extraordinary attack on the independence of the judiciary, Senate Minority Leader Sen. Chuck Schumer threatened  Associate Justices Neil Gorsuch and Brett Kavanaugh with retaliation if they voted against abortion rights this term. As I discussed in my column yesterday, the Court heard oral arguments today in June Medical Services v. Russo. Schumer joined protests on the steps of the Court to warn the justices that they “will pay the price” if they vote against abortion rights. Chief Justice John Roberts issued a rare public rebuke (as he did earlier with President Trump) to defend the integrity of the judiciary. He was right to do so. Schumer sounded more like a stalker than a statesmen in his threats of future retaliation.

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Did Biden Just Give A “Hell Yes” To O’Rourke As Gun Czar?

Democratic candidates are lining up to endorse Joe Biden in an open effort to force the long-discussed contested convention where “superdelegates” can take away the nomination from Bernie Sanders — what Elizabeth Warren’s campaign revealed this week as their “final play.” In response, Biden seems to be handing out cabinet and Administration jobs, referring to a place in his administration for Pete Buttigieg in accepting his endorsement. However, it was the promise given former Texas Rep. Beto O’Rourke that surprised most people. Biden promised to make O’Rourke — who went down in flames in the primary — the head of his gun control effort. The pledge will likely push most gun owners to Trump since O’Rourke’s calls to seize guns was not only too extreme for most Democratic candidates but it is also arguably unconstitutional. O’Rourke’s “Hell yes” call to seize AR-15s played right into the hands of gun control opponents.

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Roberts Redux? Supreme Court Takes Obamacare Appeal

The Supreme Court decided Monday to hear the appeal of various states seeking to reverse a lower court ruling that the individual mandate provision of the Affordable Care Act is unconstitutional. As with the abortion case to be heard this week, the case will put Chief Justice John Roberts at a critical crossroads as the new swing vote on the Court. However, the Obamacare decision (as I discussed earlier in a column) is a bill coming due for Roberts on his reasoning in the first Obamacare decision.

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Congress Hits Rock Bottom With Ruling In McGahn Case

Below is my column on the catastrophic loss of Congress in the recent decision in favor of the Trump Administration over the testimony of former White House Counsel Don McGahn. This loss is breathtaking for the House of Representatives. I was lead counsel in the litigation over Obamacare and, as part of that victory, we succeeded in getting the district court to recognize the standing of the House of Representatives. This latest decision lays waste to that precedent and eviscerates the ability of the House to enforce its subpoenas.

As I discussed earlier, some have repeated the view of the House managers that the White House was arguing conflicting positions in court and in Congress: arguing that the court cannot enforce subpoenas while telling the House that it should have subpoenaed witnesses. The criticism is superficial. This was one of a number of constitutional claims that the White House wanted to raise with the courts. It would define the lines of separation of all three branches. By seeking judicial review on the ability of Congress to compel such appearances, the Administration was seeking clarity on the relative positions of the Executive and Legislative branches in such disputes. I do not blame the House leadership or the House General Counsel in bringing this action. This was a good case and a bad decision. It must be appealed. Since this is the D.C. Circuit, it is already impacted most cases involving the Congress so an additional adverse decision by the Supreme Court will only make it marginally worse. That is the point of hitting rock bottom.

The decision also shows why there are a variety of contentious constitutional issues that warrant judicial review. It further undermines the basis for Article II of the impeachment.

Here is the column:

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Lies, Damned Lies, and Presidential Debates: The Rhetoric and Reality Of Gun Control

Below is my column in the Hill newspaper on the reality and rhetoric of gun control in light of promises in the Democratic primary. The fact is that many of the ideas raised by the candidates have merit but they are likely to be marginal in their impact on real gun-related fatalities.

Here is the column:

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D.C. Circuit Rules In Favor Of White House In Barring McGahn Testimony [Updated]

This morning I have a column in the Hill newspaper on the devastating loss of the House of Representatives in The Committee on Judiciary v. Don McGahn last night. The D.C. Circuit sided with Trump in reversing a lower court and refusing to order the appearance of former White House Counsel Donald McGahn before Congress. It is not just a huge victory for the White House in barring such testimony but a devastating loss to the authority of Congress in future conflicts. I strongly disagree with the decision, though the panel fractured on both the result and the rationale. Only one judge adopted the extreme view that Congress should not have standing to seek relief from any conflicts with the White House over witnesses and evidence. Yet, the opinion represents one of the greatest legal loss in the history of the House of Representatives in terms of its enforcement of oversight authority. Notably, this follows another victory for the Trump Administration in the D.C. Circuit earlier in the week on the Trump Hotel.

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Barr Is Wrong On FISA Reforms

Attorney General Bill Barr appears on a collision course with President Donald Trump over reforming the Foreign Intelligence Surveillance Act court. Civil libertarians like Sen Rand Paul (R., Tenn.) are pushing for reforms in light of the abuses uncovered from the Russian investigation. Despite my respect and friendship for Barr, he is wrong in my view and the President should push forward with the reforms. When President Trump declared “Now is our chance to fix it,” he is absolutely correct.

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“The Southern Border Is Not A Militarized Zone”: Federal Judge Bars Some Funds For Border Wall In Defiant Decision

In Seattle, U.S. District Judge Barbara Rothstein has issued a defiant, and somewhat curious, decision that not only denies some funding for the Southern Wall but seems to defy the Supreme Court in its recent decision in the area. Rothstein barred President Donald Trump from diverting $89 million intended for a military construction project in Washington state to build the border wall. While the Supreme Court recently lifted an injunction on such lower court rulings, Rothstein insisted that that case involved different plaintiffs and issues. I fail to see the clear distinction and the Rothstein decision, in my view, works too hard to find such a distinction.

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Trump Campaign Sues The New York Times For Libel

We have previously discussed President Donald Trump’s repeated calls for changing libel laws and suing his critics, particularly the New York Times. Now his campaign has done just that with a defamation lawsuit against the New York Times for allegedly publishing false claims in an op-ed written by Max Frankel on March 27, 2019, entitled “The Real Trump-Russia Quid Pro Quo.” The selection of an opinion piece makes this case especially difficult. In addition to suing a newspaper for the alleged defamation of a public official, it is doing so for a piece that is identified as opinion and appears on the opinion page. In my view, the column is protected speech under the First Amendment.

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Second Circuit Rules In Favor Of Trump Administration On Sanctuary Cities

The Trump Administration won a major victory with decision by the 2nd US Circuit Court of Appeals in favor of its sanctions against “sanctuary cities” which refuse to cooperate with federal immigration enforcement. The decision in New York v. Department of Justice reversed a lower court ruling blocking the policy of withholding certain grants. Despite my disagreement with friends like Judge Napolitano, I previously stated that I thought the Administration would prevail ultimately on this challenge though there are good-faith arguments against government. The decision could have two immediate impacts. First, it will add pressure to cities in their opposition to the immigration policies. Second, it could create the type of split in the circuits that make a Supreme Court review more likely as these challenges move beyond the trial level.

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Roger Stone Should Be Given A New Trial, Not A Pardon

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Below is my column in the Hill newspaper on the calls for either a new trial or a presidential pardon for Roger Stone. I believe that he has a far greater claim to the former than the latter.

While I believe that the sentence of 40 months was longer than was warranted in this case, Judge Amy Berman Jackson sentenced Stone where some of us had predicted on the guidelines range. It was less than half of what the prosecutors originally asked for. Yet, the decision to go forward with the sentencing seemed odd given the substantial claim of juror bias raised by the defense in a pending motion. The other pending motion for disqualification is quite weak, but the motion for a new trial in my view should be granted. Although the odds are against Jackson ordering a new trial, it is clear that the foreperson has no business being on this jury and that her past comments raised significant and legitimate questions over whether Stone was given an impartial jury.

Here is the column:

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