No, NFL Players Do Not Have A Constitutional Right To Protest During The National Anthem

The_Star-Spangled_Banner_-_Project_Gutenberg_eText_21566Below is my column in The Hill newspaper on the calls for a constitutional challenge to the new NFL policy against protests during the National Anthem.  While many have  claimed that the policy violates free speech rights of the players, there is actually little support for such a challenge under constitutional law.  The best shot might be procedural in nature in arguing that the collective bargaining agreement requires conferral on such rules with the players. Putting aside the strong defenses to this claim, it would likely only require consultation and not a change in the ultimate policy.

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Controversy Erupts With The Intervention Of The President’s Counsel Before Two Highly Classified Briefings

350px-US-WhiteHouse-Logo.svgEmmet Flood, the latest lawyer added to the White House as part of its defense to the Russian investigation, was meant to bring experience and order to the chaotic legal team around President Donald Trump.  However, his first public move can only be described as a blunder of the first order.  Flood went to yesterday’s much discussed briefing to speak with members of Congress. Two highly classified briefings were scheduled to discuss the use of informants by the FBI in its investigation of Trump campaign associates.  It was precisely the type of thoughtless act that has baffled many of us for months.  Little would be achieved by Flood briefly addressing the members but, in appearing, Flood undermined the integrity and stated purpose of the meeting.  He created the impression that the briefing was first and foremost about the defense of the President personally.  In doing so, he undermined the entire exercise with virtually nothing to gain from his attending the meeting.  None of this was criminal or unethical. The concern is that it shows a continued failure to mind critical lines of separation as well as a dumbfounding lack of judgment.

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Oregon High School Student Suspended For Wearing Pro-Trump T-Shirt

Addison Barnes, 18, is  suing his school, Liberty High School in Hillsboro, for violating his free speech rights under the First Amendment.  Barnes had simply worn a t-shirt reading “Donald J. Trump Construction Co. . . .The wall just got 10 feet taller.” He was suspended for refusing to cover up the message.  It is clearly a political statement that some would object to. However, high school students are encouraged to become involved in the political system and nothing on the shirt is profane or racist or vulgar. If this t-shirt is offensive and barred, wouldn’t any political or religious or social cause be equally subject to such action?  The question answers itself and the implications are troubling.

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Justice Delayed Is Justice: Mueller Fights To Delay Russian Collusion Trial

440px-Director_Robert_S._Mueller-_IIIThere is an old joke among criminal defense attorneys that “justice delayed is justice,” a twist of the old adage that “justice delayed is justice denied.”  The joke reflects that fact that the defense almost always benefits from the passage of time and it is the prosecution that often pushes for earlier trial debates to deny the defense enough time to absorb and address evidence. That is not the case with Special Counsel Robert Mueller who has asked federal Judge Dabney L. Friedrich to deny a speedy trial motion and delay any trial of 13 Russians and three Russian companies for efforts to influence the 2016 election. The effort reflects problems in Mueller’s matinee case, including the allegation that he has charged a company that did not exist at the time of the alleged offenses.


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With New Referral To The Inspector General: The FBI Finds Itself Caught In A Crossfire Hurricane

2560px-Hurricane_Isabel_from_ISSBelow is my column in the Hill Newspaper on newly released information on the use of an informant against Trump officials as well as other details stemming from Operation Crossfire Hurricane.  The disclosures appear to confirm in large part the allegations made by President Donald Trump at the beginning of his Administration.  While denied at the time, it does now appear that campaign officials were surveilled and investigated.  Deputy  Attorney General Rod Rosenstein has now referred the allegation to the Inspector General for further investigation.  That is a belated but correct decision in light of the troubling implications raised by this new evidence.

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The Law Of Unintended Consequences: Mueller’s Promise Not To Indict Trump In Office Is No Favor

Below is my column in the Washington Post on the statement by lead Trump lawyer Rudy Giuliani that Special Counsel Robert Mueller had assured the Trump team that he would not seek an indictment against Trump while in office.  As I have previously written, I do not agree with those who maintain that a sitting president cannot be indicted.  However, what is most striking is how many assume that it is better for the President to face an impeachment (which is part of a political process) than an indictment. For a criminal defense standpoint, the opposite may be true.  Indeed, the best possible scenario for Mueller would be to have an impeachment before an indictment.  None of this means that there is a strong case for either impeachment or indictment, but the sequencing laid out by Giuliani is no favor to Trump.

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Gallup Poll: Ninety Percent Of Pomona Students Feel That They Cannot Speak Freely

240px-Formal_Seal_of_Pomona_College,_Claremont,_CA,_USA.svgWe have been discussing the erosion of free speech on campuses with rising speech codes and ambiguous rules barring “microaggressions.”  A small percentage of students and faculty often push for such speech codes and regulation.  However, it is often difficult for students and faculty to object at the risk of being called intolerant or microaggressors.  Now there is a Gallup poll confirming that most students feel that they are no longer able to speak freely at college due to this minority of speech intolerant students and faculty. Ninety percent of Pomona students said that they did not feel free to speak openly or freely. It is an indictment of not just Pomona but many of our colleges. Continue reading