In 2019, former Rep. Katie Hill resigned from Congress after the disclosure of sexual relations with a staff member. Ordinarily, the media and various public interest groups would have been outraged and unrelenting in their “MeToo” coverage, particularly with a young staffer recently out of college. In the case of Hill, however ,media outlets like MSNBC picked up on Hill’s claim that she was subjected to a “double standard” and a “misogynistic culture.” It was the ultimate form of ironic hypocrisy where a politician claimed a double standard in being forced to resign — seeking an accommodation that was wisely denied to male colleagues in past scandals. Various male politicians from Sen. Bob Packwood to Rep. Trent Franks have resigned under such scandals. Sen. Al Franken resigned for acts that did not involve an actual sexual affair. Hill abused her position of power but somehow converted that abuse into a women’s rights issue. Hill sold that narrative and is now bizarrely treated by many as a victim. Now, Hill is suing over the coverage of her scandal in a lawsuit that challenges core protections for the media. Continue reading “Former Rep. Hill Files Lawsuit Against Former Husband And Media Over Public Disclosures”
Category: Constitutional Law
Brandon Hasbrouck is an assistant professor at Washington and Lee University School of Law, has written an article in The Nation calling for a new form of reparations based on voting. Featured prominently on the law school’s website, the article pushes a similar proposal made in the Washington Post in 2015 by Theodore Johnson, a senior fellow at the Brennan Center for Justice. Johnson wanted black votes to be worth five-thirds that of non-black votes. Ironically, the proposals would upend decades of civil rights litigation to defend the “one man, one vote” principle.
Below is my column in the Hill newspaper on the adoption of Trump-like rhetoric and tactics by Democrats, who seem to believe they have a strange type of immunity in the post-Trump world.
Here is the column: Continue reading “Trumpunity: How Democrats Are Adopting Trump Rhetoric and Tactics For The Biden Presidency”
We have repeatedly discussed how legal experts over the last four years have adopted ever expansive interpretations of statutory and constitutional provisions to argue that President Donald Trump could be indicted or impeached on a myriad of different grounds. This includes the reliance on interpretations long rejected by the Supreme Court. Some issues are manifestly closer like the long-standing question of presidential self-pardons. While I have long maintained (before the Trump Administration) that a president can self-pardon, I have always said that this is a question with good-faith arguments on both sides. Recently, however, experts have brought the same claims of clarity on this question to assure the public that the argument for self-pardons is “incoherent and incompatible” with the Constitution. Ken Gormley, president of Duquesne University, is one of those who supported impeachment and rejected any basis for self-pardons. He has now however gone one better and claimed that Joe Biden can “unpardon” Trump if he does grant himself a self-pardon.
New York Gov. Andrew Cuomo signed legislation this week that would ban the the sale of Confederate flags and other symbols of “intolerance and hate” on public property and limit the display of such symbols. As a long-standing free speech advocate, you must often defend speech that you find offensive. However, the First Amendment is not designed to protect popular speech. We do not need protection for speech that people support. The test of free speech is to support those with whom you disagree and speech that you oppose. This is one such case. In my view, the Cuomo legislation is a violation of the First Amendment. Continue reading “Cuomo Signs State Law Barring Sale and Display of “Symbols Of Hate””
It appears that Rep. Bill Pascrell (D., NJ) has a serious problem with Republicans going to court. We recently discussed Pascrell’s absurd effort to disbar roughly two dozen Republican lawyers for challenging the results of the 2020 election. Now Pascrell is declaring that 120 House Republicans signing a “Friend of the Court brief” (or amicus brief) is tantamount to supporting a rebellion against the United States and that they should be blocked from taking their seats in Congress. I previously denounced Pascrell for his “dangerous form of demagoguery.” This latest call shows the demagoguery has reached a level of utter delusion. Continue reading “No Friend of Congress: Pascrell Seeks To Block 120 House Republicans From Being Seated For Signing Amicus Brief”
Below is my column in the Hill on the conclusion of the case of Gen. Michael Flynn, which ended (not surprisingly) with one last gratuitous and controversial act from the court. Judge Emmet Sullivan decided to effectively flog Flynn on his way out of his court.
Here is the column: Continue reading “Flynn’s Cadaver Synod: The Court Dismisses A Dead Case But Not Before It Flogs The Corpse”
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. The level of censorship and viewpoint regulation has raised questions of a new type of state media where companies advance an ideological agenda with political allies. The state media criticism was never more compelling than in the announcement of YouTube this week that it would now remove videos that question the victory of President-elect Joe Biden. The election is over but YouTube will now scrub away any dissenting views that the election was marred by fraud. It now appears to be protecting history itself from things deemed disinformation — the ultimate calling of the corporate censor.
Continue reading “YouTube Declares It Will Censor Videos Questioning Biden’s Victory”
We have been discussing how reporters, editors, commentators, and academics have embraced rising calls for censorship and speech controls, including President-elect Joe Biden and key advisers. This includes academics rejecting the very concept of objectivity in journalism in favor of open advocacy. Now, Columbia Journalism Dean and New Yorker writer Steve Coll has denounced how the First Amendment right to freedom of speech was being “weaponized” to protect disinformation. That’s right. A journalism dean and writer declaring that the problem is that free speech itself is allowing too much freedom on the Internet and other forums. Continue reading ““Free Speech Is Being Weaponized”: Columbia Dean and New Yorker Writer Calls For More Censorship”
Christopher Krebs, has filed a lawsuit against Trump attorney Joe diGenova over this controversial joke that Krebs should be “drawn and quartered” and then “shot” for his failures as the former head of U.S. cybersecurity. The lawsuit strikes me as meritless under governing tort doctrines. While Mark Zaid declared that “no rational person” who heard diGenova calling for a person to be drawn and quartered and then shot “would have taken it as ‘jest,’” many of us took the comment as an obvious use of exaggerated rhetoric. While I immediately condemned the language, I did not view it as a serious call for violence. Torts cases of defamation often turn common understanding of such expression as jokes or opinion. The lawsuit not only contradicts governing case law but threatens constitutional protections for free speech and the free press in seeking such tort relief.
Continue reading “Krebs Files Lawsuit Against diGenova, The Trump Campaign, and Newsmax”
With the nomination of California Attorney General Xavier Becerra for Secretary of the Department of Health and Human Services, the list of presumed frontrunners for Attorney General is narrowing. One name remains prominently at top: former Associate Attorney General Sally Yates. Yates’ appointment would be one of the most controversial for Biden and would likely lead to an intense confirmation fight over her standoff with President Donald Trump at the start of his Administration as well as her role in the Russian investigation. However, in a strange way, Yates’ controversy could be exactly what both President Trump and President-Elect Joe Biden need if they are looking a basis for a self-pardon.
Continue reading “Is Biden About To Help Make The Case For A Self-Pardon?”
We have recently been discussing the arguments for and against presidential self-pardons — a debate that has raged for decades among academics. Some of us believe that the absence of a limitation for such pardons should carry the day on the constitutional interpretation. Judge Richard Posner discussed the issue in commentary and also concluded that “it has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.” Others believe that the intent is clear against such self-dealing even if the language is silent. What is notable is that, while we disagree on this interesting historical and constitutional question, we are virtually unanimous in our view that such self-pardons are inherently abusive and should not be granted. This is a good-faith disagreement and I have never argued that the answer is clear. I have tremendous respect for many on the other side of this debate including former Judge Michael Luttig, who just penned a thoughtful column in the Washington Post arguing against such self-pardons. I recommend that you read the column in full but I wanted to respond to some of its more salient points. Continue reading “Self-Pardons: A Response To Judge Michael Luttig”
Just before I was interviewed today on Fox about ongoing challenges to shutdown orders, Admiral Brett Giroir was interviewed and gave what must have been welcomed views on the science behind pandemic orders. A hearing is scheduled tomorrow in one of the challenges by businesses in California to the lockdown ordered by Governor Gavin Newsom. Giroir however stated that there was no evidence or science supporting the type of categorical lockdown in states like California, particularly bans on outdoor dining. The statement presents a potential conflict with Dr. Anthony Fauci. It certainly contradicts the common narrative in the media and the recent election. Continue reading “Admiral Giroir Slams Bans On Outdoor Dining As Without Scientific Basis”
Below is my column in the Hill on the controversy over presidential self-pardons. Many academics have long expressed the view that a president can issue a self pardon. Judge Richard Posner discussed the issue in commentary and also concluded that such a pardon could occur. Posner stated “It has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.” This has been a long-standing debate and there is an honest and interesting debate on the issue. For some of us, there is a difference between condemning such self-pardons as self-dealing and declaring that the Constitution clearly bars such presidential acts. That does not change because the subject of the analysis is now President Donald Trump.
Here is the column: Continue reading “Yes, Trump Can Pardon Himself But He Should Not Do So”
Below is my column in USA Today on the implications of the appointment of U.S. Attorney John Durham as a Special Counsel. House Intelligence Committee Adam Schiff and other Democrats have already denounced the move and called for the next Attorney General to consider rescinding the appointment. While Schiff previously called for legislation to protect Special Counsel Robert Mueller to complete his work without interference from the Attorney General, he ramped up the rhetoric against Durham as leading a “politically motivated investigation.” Durham was previously praised by Democrats and Republicans alike as an independent, apolitical, and honest prosecutor. After insisting that the public has a right to see what has been uncovered over years of investigation by Mueller, they are now pushing to end the Durham investigation and forestall any final public report.
Here is the column:
Continue reading “Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle”