We have been discussing the rapid erosion of free speech on our campuses and the increasing confrontations with students who bar speech with which they disagree. The result is that schools are caving into academic demands made by students, including incidents like the recent one at Northwestern where academic freedom is being lost to effective mob rule. It is a very serious problem that has now led to the first legislative intervention. Wisconsin legislators are pushing a bill that would suspend or expel students who disrupt speakers. I agree that schools need to suspend or expel students who are engaging in violent or extremely disruptive conduct like shutting down classes like the one at Northwestern. Notably, while a few suspensions were handed out after the assault on a faculty member at Middlebury, no one was expelled. However, the Wisconsin law is concerning in its language and scope. We need faculty to stand up for free speech and stand up to these disruptive students, including serious disciplinary action.
Category: Constitutional Law
Ted Wheeler, mayor of Portland, Oregon, has joined a growing list of liberals curtailing free speech and seeking exceptions for speech that they deem to be hateful or offensive. We saw recently Howard Dean espousing the false premise that there is a hate speech exception to the First Amendment. We also saw politicians in California seeking to curtail anything that they deem to be “fake news.” Now Wheeler is espousing the same anti-speech nonsense in seeking to ban a conservative demonstration by a group called Patriot Prayer.
Continue reading “Portland Mayor Demands Feds Bar Conservative Group From Speaking”
With Harvard holding its first black-only graduation this year and various schools creating black only dorms and safe spaces, “separate but equal” seems to be on the resurgence in America (something I wrote about ten years ago). However, Paris mayor, Anne Hidalgo, has stood firm against all forms of discrimination and barred the black feminist festival in the French capital because it is “prohibited to white people.” She said that racial discrimination in any form or for any purpose will not be tolerated.
Continue reading “Paris Mayor Calls For Banning Of Black Only Event In Paris”
With the steady stream of controversies swirling around the White House, there has been little attention given a highly disturbing report that the Obama Administration engaged in previously undisclosed and violations of the Fourth Amendment. Just a few days from the 2016 election, the Foreign Intelligence Surveillance Court (FISA) reportedly raised a highly unusual alarm over the creation of “a very serious Fourth Amendment issue” by possibly unconstitutional surveillance conducted under President Barack Obama. If true, this should be given equal attention to the other stories crowding our front pages and cable coverage. The Obama Administration has a well-documented history of abuse of surveillance and stands as one of the most antagonistic administrations toward privacy in our history. Indeed, if true, many of the former Obama officials currently testifying against the Trump Administration were responsible for a far broader scope of abusive surveillance programs.
In a stinging defeat for the Trump Administration, the United States Court of Appeals for the Fourth Circuit has upheld an injunction on the Trump Administration’s immigration order. The Fourth Circuit is widely viewed as one of the most conservative circuits and has proven the most deferential to national security powers by the Executive Branch. Indeed, the government often openly forum shops in pushing national security cases through the Eastern District of Virginia and ultimately the Fourth Circuit. The 10-3 vote is an impressive victory for the challengers and now sets the case for the long-awaited petition to the Supreme Court. The court did not spare the rhetorical bite, observing that the order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
There has been a chorus of commentators saying that the invocation of the Fifth Amendment by former national security advisor Michael Flynn leaves only immunity as the unlikely option for Congress. This was stated repeatedly on CNN last night. (I was supposed to go on Anderson Cooper and I was going to correct that view but the terrible massacre in England obviously took priority in coverage). The fact is that there is an obvious option: move to hold Flynn in contempt. The case law is not a clear cut as commentators have suggested on the “act of production doctrine.” Moreover, Congress has an institutional interest in pushing back on such invocations if it does not view the production as testimonial.
Continue reading “Does Congress Have Any Options After Flynn Takes The Fifth? You Bet.”
This morning’s news is again filled with a new and troubling disclosure out of the Trump White House. Various news organizations are reporting that President Donald Trump spoke to Director of National Intelligence Dan Coats and National Security Agency Director Adm. Michael Rogers about the Russian investigation and asked them to publicly deny evidence of cooperation between his campaign and Russia. I was on Morning Joe today and once again cautioned about declaring a prima facie case of obstruction (as many have done on CNN and other networks) in the absence of facts satisfying the elements for that crime. While it is obviously something of a buzz kill, there still is not sufficient evidence (even if these accounts are true) to support an indictment.
Continue reading “Report: Trump Pressured the DNI and NSA Chief To Scuttle FBI Investigation”
I have previously criticized Northwestern University President Morton Schapiro for his lack of support for free speech on campus. Unlike the University of Chicago across town, Schapiro has been leading the calls for limiting speech deemed to be a “microaggression” or offensive. (For full disclosure, I am a graduate of both Northwestern and Chicago). His lack of commitment to free speech has made him popular with some groups while alarming free speech advocates. That concern was heightened this week when Schapiro defended his efforts to give protected “safe spaces” on campus and said that some offensive speech should be considered a form of “assault.” The comments further distinguish Schapiro was one of the most hostile university presidents toward free speech principles in the country. His pandering to those demanding speech codes and regulations should be an embarrassment for the university, which remains one of the world’s premiere academic institutions. He has taught his students well. Soon after the publication of his latest remarks, student groups shutdown a speaker and a class on immigration. It appears that even classes must now adhere to the mob rule at Northwestern.
Below is my column in The Hill Newspaper on the chorus of commentators suggesting that the Comey memo is compelling evidence for either a charge of obstruction of justice or an actual impeachment. I have been cautioning against such sweeping assumptions. Obstruction is a crime and crimes have elements. The elements are not satisfied by this memorandum. Yesterday senators revealed that Rod Rosenstein suggested that he was already informed that Comey would be fired before he wrote his memorandum supporting termination. That would not materially alter the legal analysis. Rosenstein’s memo confirms that he believed that Comey should be fired. He had met with Comey and clearly left with reservations over his continued fitness for the position. The fact that Trump may have made what Rosenstein thought was the right decision for the wrong reason is marginally relevant. Comey’s immediate boss was not supporting his retention. Moreover, Trump’s conflicting statements do not improve the case for prosecution. It it true that Trump has contradicted his staff and seemingly himself. Yet, Trump has insisted that he felt Comey was doing a poor job and yesterday he reaffirmed his position that he never asked Comey to drop the Flynn investigation. However, even if he said such an incredibly inappropriate thing, it would not meet the standards of obstruction for the purposes of a criminal charge in my view. In other words, this is a question of law not fact and the law is not on the side of those calling for criminal counts or articles of impeachment.
Critics increasingly sound like my kids when we drive across country and start to chant “are we there yet?” before we are even a block from the house. Many view a criminal charge or impeachment as the only hope for America. However, neither the criminal code nor Article II were meant as post hoc political options for unpopular presidents. Indeed, both are designed to be insulated from public distempers and passions.
None of this means that this is not a valid basis for investigation. It is. Moreover, the White House staff appears encircled like a wagon train on the Plains with no ammunition and no nearby fort. The difference is that they seem encircled by their own president who continued to prevent any movement to better ground. What is fascinating is that Trump appears intent on creating the most self-incriminating appearance without evidence of an actual crime on his part.
Here is the column:
We have been writing about the enculturation of anti-free speech values in college students across the country. The most recent incident occurred at the California State University where assistant professor of public health professor Greg Thatcher is shown on a videotape wiping out the pro-life statements written in chalk by members of Fresno State Students for Life. Thatcher supports his students who destroyed the messages before his arrival (those students said that their teacher gave them permission to destroy the free speech of other students). Thatcher’s attitude and open contempt for free speech is chilling. It is also now the subject of a free speech lawsuit filed against him in his personal capacity.
Below is my column in USA Today on President Donald Trump’s disclosure of highly classified information to the Russians in his controversial meeting after the firing of James Comey. While the Administration issued a series of categorical denials of the underlying stories as “false,” the next day it appeared to acknowledge that Trump did in fact reveal the information. As discussed below, it was a wise decision not to repeat the initially misleading statements to Congress. The intelligence was reportedly generated by Israel, which did not give permission to the President to make the disclosure to the Russians. Since the New York Times and Washington Post did not say that Trump released “sources and methods,” it now appears that the White House is not claiming that the stories were false. It is the latest example of denials from the White House which then lead to embarrassing reversals over the course of the coverage. The only good sign is that the White House saw that the false account was raising serious problems and reversed course the next morning. However, the familiar pattern has taken its toll on the Hill where members were conspicuously absent this time in defending the President.
Continue reading “The Russian Disclosure: Trump’s Game of Truth or Dare”
I have previously been critical of the stance taken by former acting Attorney General Sally Yates. I remained unconvinced that Yates had the ethical basis to order for the entire Justice Department to stand down and not to assist the president in the defense of his first executive order on immigration. I also questioned Yates’ decision to voluntarily testify before the House Permanent Select Committee on Intelligence. She was testifying as someone who was recently in a prosecutorial position about subjects related to an ongoing investigation where no one has yet to be indicted. Now those concerns have been magnified by Yates’ appearance in the media to talk about matters center to the ongoing investigation at the Justice Department and other related subjects.
Continue reading “Yates Goes On CNN To Declare That Russians Had “Real Leverage” Over Flynn”
The one thing you can say about this President is that he has an impressive sense of timing. Unfortunately it tends to be bad timing. First there was the disastrous meeting with the Russians in the wake of his firing former FBI Director James Comey. The optics could not be worst . . . until the meeting got worse with the alleged disclosure of code name intelligence from an ally. That meeting was held at the request of Russian president Vladimir Putin and then the Russians releases pictures taken by its state-run media organization, Tass, to the embarrassment of the Administration. Now, after Trump has threatened to cancel daily press briefings and change libel laws to allow easier lawsuits against the media, he is meeting with one of the one of the world’s most authoritarian figures, Turkish President Recep Tayyip Erdogan. Trump was previously criticized for calling Erdogan to congratulate him for acquiring near dictatorial powers in a close referendum. The last leader that anyone would want commiserating with Trump at this moment is Erdogan who has arrested journalists and critics alike in a crackdown on free speech and the free press.
There has been comparatively little coverage of an allegation voiced by Sen. Rand Paul that another Senator confided in him that he was also subjected to surveillance under the Obama Administration. Paul previously voiced his belief that he may have been the subject of surveillance and asked the intelligence committee for confirmation of any such evidence. The surveillance of members of the Senate would raise extremely serious questions on the abuse of surveillance authority and threat to the independence of Congress. If this is untrue, I would have expected a reassuring denial to be issued. Even if the Senators were not the target of surveillance, it would be highly troubling if the government monitored conversations with members of Congress.
Below is my column in the Hill Newspaper on the Comey termination and comparisons to the Nixon presidency. Those analogies deepened this weekend after the President repeated that he thinks that they should just get rid of the daily press briefings that have been such a central part of White House operations for decades. What is most striking is how, again, the White House has engineered its own undoing. Many people had called for Comey to be fired, particularly Democrats. However, the timing and manner of the termination has created yet another scandal for the Administration. Only 27 percent of citizens support the decision according to a NBC/Wall Street Journal poll. The growing credibility crisis has made the appointment of a Special Prosecutor (or even the resurrection of the Independent Counsel Act) a priority for many. While I have been a dissenting voice regarding the need for a Special Prosecutor, the Comey debacle has changed my view. The public deserves an independent investigation into these allegations and related issues. Perhaps people will be satisfied with the FBI investigation under a new director, but the last week has been so damaging to public confidence that the need for an independent investigation is obvious. Having said that, I am still unsure of the major crime being investigated under the facts that are currently known. For the moment, this Administration appears intent of self-incriminating actions in the absence of an actual crime.
Here is the column:
Continue reading “Trump’s Inner Nixon: Is It Possible To Have a Cover Up Without An Actual Crime?”