Category: Constitutional Law

The Stone Indictment: Mueller Continues To Build A Case Of Non-Collusion

Below is my column in USA Today on the Roger Stone indictment. I have been frankly astonished by the coverage, which has focused on simply the fact that he was charged as opposed to what he was charged with. Once again, the indictment’s significance has been uniformly over-played with little objective analysis of the specific counts themselves. From any objective perspective it is underwhelming in both the underlying conduct and the scope of the allegations.

Here is the column:


Legal Groups Around The World Rally Behind Turkey’s Dwindling Bar On The International Day Of The Endangered Lawyer

Today, the global bar groups rallied in support of the rule of law on the “International Day of the Endangered Lawyer.” The international effort is designed to draw attention to the thousands of lawyers and judges killed or imprisoned each year as they fight for basic legal rights in countries from China to Iran to Venezuela. However, no bar is more devastated than the one in Turkey where thousands of lawyers have been imprisoned and tortured for fighting the authoritarian regime of Recep Tayyip Erdogan. Despite the praise from our president, Erdogan has continued a comprehensive campaign against the free press and political dissidents. This campaign however first required the elimination of thousands of lawyers to eradicate the rule of law to make way for his brutal religious-based authoritarian rule.

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Italian Supreme Court Rules That Watching Porn At Work Is A Protected Right

According to the Italian edition of The Local via LiveSicilia, workers on personal breaks have a protected right to watch pornography. The Supreme Court of Cassation in Rome said Fiat had no right to sack the worker, who enjoyed “just a glimpse of the film during a meal break.” The United States may inadvertently go even further in actually paying for employees to watch porn. This is one of the few industries that appears to be booming in the shutdown. There is a reported sharp increase in the watching of porn after federal workers were put on leave. Since these workers will eventually be paid for their missing time, we may outstrip Italy on the provocative issue.

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Will Michael Cohen’s Father-in-Law Sue Giuliani For Defamation?

In Washington, it is all too common for public figures to exchange uncorroborated allegations. Often the most telling factor is to wait to see who actually sues for defamation. We are at that point in the controversy surrounding the Buzzfeed story after Trump counsel Rudy Giuliani made what would be arguably defamatory statements against the father-in-law of Michael Cohen on national television . . . if the statements are untrue. The question is whether Fima Shusterman will sue over being called a criminal working with Ukrainian organized crime.

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No, Mr. Giuliani, BuzzFeed Should Not Be Sued Or Investigated [Updated]

It often seems that when the Trump team has the high ground on a story, it rushes to bulldoze it to the ground. The controversial interview by Rudy Giuliani on CNN, it a case in point. In response to the rebuke of BuzzFeed by the Special Counsel, Giuliani gave a rambling interview that included a call for BuzzFeed to be investigated or sued. Neither should occur. I have been critical of how the media and legal experts overplayed the BuzzFeed story. However, if BuzzFeed had two officials connected to the Mueller investigation giving this information, it was news. Indeed, aspects of the story are likely to be born out by Michael Cohen in his testimony before Congress. There is ample reason to criticize how the media treated this story but the suggestion that journalists should be investigated or sued for reporting such a story is dangerous and unwarranted. Indeed, Giuliani made news  an by asking “And so what if he talked to him about it?” In fairness to Giuliani (who has been unfairly reported on the context of the statement), he prefaced that statement by saying that he did not know if Trump spoke to Cohen. However, it would be a reckless and problematic act if Trump spoke to a witness about this testimony on his and Trump’s conduct. Such an act would maximize the risk to himself and Cohen.

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The House Has A Duty To Impeach If They Find High Crimes and Misdemeanors By Trump

Below is my column in USA Today on the recent statements by various Democratic leaders that they are unlikely to pursue impeachment because they do not have the votes in the Senate to convict. While many members pushed the impeachment angle during the campaign, there was a shift on the issue after the Democrats took office. Almost immediately after the election, senior Democrats changed course and began to dismiss calls for impeachment as “fruitless” and a distraction. Rep. Eleanor Holmes Norton declared impeachment to be “a useless waste of energy” and asked “Why would we go down the impeachment road when we cannot get it through the Senate?” 

I have repeatedly said that I do not see the strong foundation for an impeachment against Trump. However, these comments raise a more fundamental question about how members should approach their duties under Article I irrespective of the President. Members often pull a bait-and-switch with gullible voters, but they should not manufacture a new constitutional standard. If they truly believe that any president has committed high crimes and misdemeanors, they have a sworn duty to vote for impeachment.

Here is the column:

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Posted: WA Lt. Gov. Cyrus Habib is a Coward

By Darren Smith, Weekend Contributor

Portrait of Cyrus Habib It seems that Washington Lieutenant Governor Cyrus Habib is so frightened of the notion of citizens having lawfully carried concealed pistols, that he is unable to fulfill his duty as a result.

The Lieutenant Governor ducked out of the annual State of the State address given by Washington Governor Inslee because he felt vulnerable.  The House Chamber has galleries open to the public and both state law and House rules allow those having concealed pistol licenses to attend the event. Despite the fact that the governor, representatives, senators, and the nine supreme court justices did not express feeling any danger, and there was no credible threats made against the lieutenant governor, he announced he would not participate unless his fears were allayed by policy change.

Since just about every area in Washington allows permitted concealed carry and open carry of firearms, save for a few narrowly defined exceptions, how is it that Lt. Governor Habib can summon the courage to leave home?

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Five Myths About Bill Barr

Below is my column in the Hill newspaper on a growing mythology building around the nomination of Bill Barr for Attorney General of the United States. One of the most prominent is that Barr was intentionally evasive about releasing any report from Special Counsel Robert Mueller. Members of both parties have overwhelmingly called for the release of the report. However, Democratic members pushed Barr to promise to release the entire report before he actually reads it.

Barr said repeatedly that he believed that not only the completion of the Special Counsel investigation but the release of the information was in the public interest.  Barr was repeating the standard from the regulation, which is precisely what he should do.  That standard says that the Attorney General has discretion to conclude that “these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.” What the Democratic senators were demanding would have been an unethical pledge to release a report without knowing its contents.  Federal law prevents the disclosure of a myriad of different types of material from Grand jury (or Rule 6(e)) material to classified material to material covered in privacy or confidentiality laws as well as possible privileged material.  After pushing him on whether he would act ethically, it was a curious request for a facially unethical and unprofessional pledge.
Here is what Barr said:

“I also believe it is very important that the public and Congress be informed of the results of the special counsel’s work . . .For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political or other improper interests influence my decision.”

Here is the column:

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Report: Trump Told Cohen To Lie To Congress

There is a new report out today that President Donald Trump directed his attorney Michael Cohen to lie to Congress about negotiations to build a Trump Tower in Moscow. The sources are described as two federal law enforcement officials involved in an investigation of the matter. It is not clear if that means two officials currently involved or previously involved (which would include some of the fired or removed officials like Andrew McCabe or James Comey). Nevertheless, if true, such an allegation could easily be translated into a criminal allegation or article of impeachment. It comes down to the proof. What is clear is that, if the proof is Cohen alone, they have work to do on this one. Cohen is a serial liar and felon. I have written that I agree with the Democrats in calling him to testify and that his testimony could prove useful in giving needed details. However, Cohen is about as credible as a mob torpedo without being thoroughly and completely verified by more credible sources. There are also some gaps in the story as well as obvious defenses.

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Witch Hunt or Mole Hunt? The Times Bombshell Could Blow Up Both Sides

Below is my column in The Hill newspaper on the recent disclosure that the FBI opened an investigation into whether President Donald Trump was working for Russia after his firing of former FBI Director James Comey. In reading the story, it struck me that the emerging picture from early 2017 looks increasingly like a study in cognitive bias. Indeed, it raises a rather intriguing possibility that both sides may feed each other in reaching the wrong conclusions.

Here is the column:

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Saudi Teenager Continues Standoff In Thailand In Seeking Asylum

There remains confusion in Thailand over the fate of Rahaf Mohammed al-Qunun, 18, who is seeking asylum after renouncing Islam and refusing to be treated as chattel under the medieval laws of Saudi Arabia. We have previously discussed the sexist and repressive laws imposed on women in the Kingdom, making adult women effective wards of male family members, including younger siblings or family members. Since the Saudis kill people for apostasy, the fear of this young woman is real and immediate. She is deserving of asylum and the United States should show that it truly believes in women’s rights and step forward to give her protection against our Saudi allies.

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Police Search For Rapist After Woman in Vegetative State For Ten Years Gives Birth In Arizona Facility

Regulars on this blog are familiar with the doctrine of res ipsa loquitur (or “the thing speaks for itself”). One twisted case near Phoenix, Arizona would certainly seem to fit that definition after a patient in a vegetative state gave birth. AZ Family reported that he victim is a member of the San Carlos Apache Tribe who nearly drowned 10 years ago. Police or the company may seek DNA samples from all male employees at Hacienda HealthCare. In this case, a positive match would by definition confirm rape given the non-consensual context.

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Yes, Trump Has The Authority To Declare A National Emergency On The Southern Border

Below is my column in The Hill newspaper on the threat of President Donald Trump that, should the Democrats refuse to fund the wall, he is preparing to declare a national emergency to build it unilaterally. As I discuss below, I believe that such a declaration should be opposed by Congress in defense of its inherent constitutional function over the federal purse. I do not see the compelling basis to declare an emergency given the available data on illegal crossings on the Southern border. However, I disagree with those who have argued that such a declaration would be unconstitutional.

Here is the column:

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Trump Goes “Medieval”: Both Sides Deepen Divide Over Wall

In his signature fashion, President Donald Trump on Wednesday embraced the criticism of the Democrats and said that his wall is “medieval” but works. Last night, the public saw both the President and the Democrats announce that they will not yield an inch as the country continues what will soon become the longest government shutdown in history. Lingering in the background is the threat of a presidential declaration of emergency — followed by a unilateral order to start to build the wall with unobligated funds. If so, the White House needs to guarantee that it will not repeat the grossly negligent performance of its first travel ban roll out. Trump reportedly stormed out of a meeting with Democrats in the afternoon.

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