There was a palpable sense of relief in Washington as the Trump trial came to a chaotic but final end. The verdict is in so now the vilification can begin. Both Majority Leader Chuck Schumer and Speaker Nancy Pelosi immediately weaponized the verdict and demonized those who voted to acquit. While the Democrats insisted that all senators should “vote their conscience” that only meant if their conscience supported their side. Pelosi denounced opposing senators as cowards while Schumer lashed out at them for holding an opposing view of the evidence or the process. While groups are targeting members on both sides of the trial, our leaders should be calling for unity and civility after the trial. Instead, they are fueling the politics of division.
Category: Constitutional Law
Below is my column in USA Today on the lack of a strategy by the House to secure conviction in the trial of former President Donald Trump. As I have previously noted, the House managers did an excellent job in their presentations and many of the videotapes rekindled the anger that most of us felt over the riot. They also reinforced the view of many (including myself) that former president Donald Trump bears responsibility in the tragedy that unfolded due to his reckless rhetoric. Yet, there was a glaring omission in the substance of the House arguments. The managers did not lay out what the standard should be in convicting a former president for incitement of an insurrection and only briefly touched on proving any “state of mind” needed for such a conviction. That is why I have referred to their case as more emotive than probative. It lacked direct evidence to support the claim that Trump wanted to incite an actual insurrection or rebellion against the United States, as alleged in the article of impeachment. I do not believe that an acquittal was inevitable in this case, but it was all but assured by critical decisions made by the House in this impeachment. The unforced errors discussed below raise the question of whether the Democrats “tanked” the trial.
Here is the column:
Continue reading “Did The Democrats “Tank” The Second Trump Trial?”
At the end of its first day of argument, the Senate trial was thrown into chaos when a “juror” stood up like a scene out of Perry Mason to contest the veracity statements made by “prosecutors.” That moment came as the Senate was preparing to end for the day and Senator Mike Lee (R., Utah) jumped to his feet to object that a quote by House manager Rep. David Cicilline (D., R.I.) was false. Lee should know. They were purportedly his words. After a frenzy on the floor and a delay of proceedings, lead House manager Rep. Jamie Raskin (D., Md) announced that it would withdraw Cicilline’s statements and that “this is much ado about nothing, because it’s not critical in anyway to our case.” In reality, it had much to do about the manager’s case and highlights a glaring problem in its case. The House has elected to try this case of incitement of insurrection largely on circumstantial evidence and using media reports rather than witness testimony. It is trial by innuendo and implication rather than direct evidence of what Trump knew and intended on January 6th. Continue reading ““Much To Do About Nothing”: The Withdrawal Of The Lee Claim Has “Much To Do” With A Glaring Flaw In The House Case”
When the House moved to impeach President Donald Trump for a second time, I wrote a column on the similarities to the William Belknap impeachment in 1876. The vote of the Senate to continue the trial despite a constitutional challenge over the use of a retroactive trial bore striking resemblance to that earlier decision. That should be good news for Trump. The Senate declared the trial constitutional and effectively over by its 56-44 vote. Continue reading “The Belknap Margin: The Senate Decision Shows Not Much Has Changed Since 1876”
Recently, Laurence Tribe bizarrely claimed that “not long ago” I argued in favor of retroactive trials in reference to my Duke Law Journal article from 21 years ago. Now, the House managers have claimed that I supported retroactive trials up to a few weeks ago. Rep. Joe Neguse cited my Duke piece at length to support the basis for retroactive trials after saying that I supported such trials until the last few weeks. I felt Neguse did an excellent job in his argument but any suggestion of a recent change would be untrue. His reliance, however, on the Duke article was not misplaced. I did and continue to recognize the value of such trials — and certainly the historical use of such trials. It is the jurisdictional question that has changed for me. It is true that I did not have reason to write publicly on the Trump retroactive trial until a few weeks ago (like many scholars), but my underlying views changed years before. However, if my views of 21 years ago are going to be cited as recent or “not long ago,” I would at least appreciate the use of my thinner photos from the 1990s. To give you an idea of how “recent” this was, here is my picture when I wrote those words. I will now insist on it being used as a recent image.
We recently discussed how House managers are claiming the right to use Trump’s failure to testify at his trial as proof of guilt (despite the fact that presidents historically have not given such testimony at Senate trials). Now CNN has released (on the day before the start of arguments) an account from an unnamed former “senior aide” that Trump was watching the riot in the Capitol unfold and “loving watching the Capitol mob.” The same pattern emerged in the first Trump trial. It is being described as the “smoking gun” evidence needed to secure conviction. The story highlights the decision of the House not to call witnesses before or after its snap impeachment. The question is why the House would use implication, innuendo, and inference when it could have used direct evidence to seek the conviction of Donald Trump.
“The First Amendment does not apply in impeachment proceedings.” If there is a single line that sums up the sense of legal impunity in the second Trump impeachment, it is that line from a letter sent by law professors to deny any basis for the former president to challenge his impeachment on free speech grounds. The scholars call any such arguments “legally frivolous” but only after misstating the argument and frankly employing a degree of circular logic. While I agree with aspects of the letter, I believe that the thrust of the letter misses the point of those of us who have raised free speech concerns. Continue reading ““The First Amendment Does Not Apply”: A Response To The Letter Of Scholars In Rejecting Trump Arguments Under The First Amendment”
Below is my column in The Hill on the news that Donald Trump will not be charged with campaign finance violations linked to payments made to Stormy Daniels. The report (and the start of the Senate trial) raise another question as to why Trump has not been interviewed, let alone charged, with the crime of incitement. Various members and legal experts have claimed that the case for prosecution is clear on its face. The crime occurred in public over a month ago, but there is no indication of a move to prosecute. Why? It is presumably not because prosecutors feel it would be too easy.
Here is the column:
Continue reading “Why Has Trump Not Been Charged With Criminal Incitement?”
Below is my column in the Hill on the trial briefs filed by the House and the Trump team for the second Trump impeachment trial. The brief of the House promises an emotionally charged but legally insufficient case for conviction. Indeed, there is no evidence that the “prosecution” is designed to win the trial since the House offers little on the issue of intent. Conversely, if Donald Trump insists on arguing election fraud, he could conceivably engineer his own conviction. Rather the strategy on both sides seems to be to enrage the emotions of viewers rather than prove an actual case for incitement to insurrection.
Here is the column: Continue reading “A Question Of Intent: How The Trump Trial Is Designed To Enrage But Not Convict”
Over the last four years, we have seen an alarming trend of law professors and legal experts discarding constitutional and due process commitments to support theories for the prosecution or impeachment of Donald Trump or his family. Legal experts who long defended criminal defense rights have suddenly become advocates of the most sweeping interpretations of criminal or constitutional provisions while discarding basic due process and fairness concerns. Even theories that have been clearly rejected by the Supreme Court have been claimed to be valid in columns. No principle seems inviolate when it stands in the way of a Trump prosecution. Yet, the statement of House manager Rep. Jamie Raskin, D-Md., this week was breathtaking. A former law professor, Raskin declared that the decision of Trump not to testify in the Senate could be cited or used by House managers as an inference of his guilt — a statement that contradicts not just our constitutional principles but centuries of legal writing. Yet, it appears a signature of this team of House managers. Rep. Eric Swalwell earlier insisted that the failure to then President Trump to turn over documents should be cited as evidence of guilt on any underlying claims.
Continue reading “Raskin: Trump’s Decision Not To Testify May Be Cited As Evidence Of His Guilt”
We have have been discussing how writers, editors, commentators, and academics have embraced rising calls for censorship and speech controls, including President-elect Joe Biden and his key advisers. The erosion of free speech has been radically accelerated by the Big Tech and social media companies, including YouTube. Now YouTube has censored actual testimony given to the United States Senate by Dr. Pierre Kory, who was testifying on different drug treatment. So now these companies are going to censor what was told to the government and decide what viewers will be allowed to consider from the public debate. It is a continuation of the movement to prevent people from hearing opposing views and to control what is shared or discussed in a growing attack on free speech. Continue reading “YouTube Censors Senate Testimony From Doctor On Possible Covid Drug”
Over the last four years, there has been a type of race by politicians and pundits who seek to outdo each other in the most sensational claims of how Donald Trump could be prosecuted or impeached on an ever-expanding list of offenses. Each claim is stated with absolute certainty despite long-standing questions or constitutional barriers. Democratic Rep. Maxine Waters of California has been a standout in this crowd — calling for impeachments and prosecutions from the very beginning of Trump’s term in office. She is now insisting that Trump can and should be charged with “premeditated murder” over the deadly riots at the U.S. Capitol on Jan. 6th. The statement was made on MSNBC which has trafficked in such ridiculous theories without any pushback from the media or legal experts. Continue reading “Rep. Waters: Trump Needs To Be Charged With Premeditated Murder”
We have seen in the last four years how rage has replaced reason for many experts. Legal experts who long defended criminal defense rights have suddenly become advocates of the most sweeping interpretations of criminal or constitutional provisions while discarding basic due process and fairness concerns. Academics who teach journalism have called for an abandonment of neutrality and objectivity. The Democratic Party itself has become the champion of censorship. Even in this company, CNN’s media expert Brian Stelter is a standout. Stelter has been regularly criticized for alleged bias but this week Stelter offered an argument for limiting both free speech and the free press that would have kept George Orwell up at night. Stelter told his viewers that they really do not have to talk about censorship and simply should refer to reductions of free speech as “a harm reduction model.” Continue reading ““A Harm Reduction Model”: CNN’s Brian Stelter Offers A Perfectly Orwellian Attack On Free Speech And Freedom Of The Press”
Below is my column in the Hill on the new push to bar former President Donald Trump under the 14th Amendment in a censure resolution. Various commentators and groups have called for dozens of Republican politicians to be barred from office in the same way, including a “how to guide” for “disqualifying insurrectionists and rebels” under the 14th Amendment. Some have even added a call to put the entire Republican Party on a Domestic Terror list. Rage again has overwhelmed reason. The suggested use of the 14th Amendment raises serious constitutional concerns and could present a compelling basis for a court challenge if actually passed. Indeed, Trump could prevail in court shortly before the 2024 presidential race.
Here is the column: Continue reading “The Senate Is Playing A Dangerous Game With The 14th Amendment”
As someone who has taught defamation torts for thirty years, the Trump Administration has been a bonanza of such cases and controversies. While many claims of defamation have been resulted in filings, we have had a number of high profile political controversies turn into actual tort litigation. I regularly criticized Donald Trump for his calls to change defamation laws. On the opposing side, figures like MSNBC’s Joe Scarborough raised equally poor understandings of defamation law in considering lawsuits against Trump. However, not surprisingly in our age of rage, there has been a slew of defamation claims raised from leading lawyers to universities to academics to police officers to the Dominion company to Sarah Palin to Jerry Falwell Jr. to Roy Moore to Joy Reid . . . well, you get the idea.
What is striking is that some of the most reckless figures or groups are often the first to raise such claims, including Trump himself. The Lincoln Project is the latest example. The group participated a disgraceful campaign of intimidation against lawyers and law firms that began soon after the election, including alleged efforts to dox or troll people with opposing views. This includes work that was previously discussed as potentially defamatory. It is now saying that it has a strong case against Rudy Giuliani who himself seems a perpetual defamation machine. The claim arose after Giuliani held a signature interview with unhinged and unsupported allegations, including that someone associated with The Lincoln Project helped orchestrate the recent riot on Capitol Hill. While the Project says that this is an open and shut case, there are serious impediments facing such a lawsuit and it is not, in my view, sure thing under controlling case law.