This week, President Donald Trump has pledged that he will “override” state orders barring in-person religious services unless governors do so. As I have previously noted, the President is claiming authority that is expressly denied to him in our system of federalism. While I have warned such deference given to the states wanes with time, any order to reopen churches in a given state will be based on the inherent authority of the courts, not the President. This issue could be coming to a head with the split decision of a panel in the Ninth Circuit late Friday to uphold the order Gov. Gavin Newsom barring large in-person religious services. Early on in the pandemic, I wrote about how governors can shutdown churches under the Constitution. The Administration can, and has promised, joined legal challenges to such state orders but it is not claiming the inherent authority of presidents to “override” state decisions. The Justice Department has warned Newsom that his order is contravening constitutional rights.
Category: Constitutional Law
We have been having a spirited debate over the orders of U.S. District Judge Emmet Sullivan in the case of former National Security Adviser Michael Flynn. Now, the United States Court of Appeals for the District of Columbia has given Judge Sullivan ten days to respond to the motion for his removal. The language is not discretionary so Sullivan will likely to have address the two controversial orders issued after the filing of the motion to dismiss. In particular, he will have to state directly to the D.C. Circuit his understanding of his own discretion in such matters. I have maintained that the law in this areas is clear and that Sullivan has little ground upon which to deny this motion. Continue reading “A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders”
Below is my column in USA Today on concerns over the recent orders of U.S. District Court Judge Emmet Sullivan. As leading lawyers, including a former Clinton U.S. Attorney openly advise Sullivan on how to “make trouble” for the Administration, these calls only magnify concerns over the purpose of these proceedings and whether they are increasingly detached from the merits of the pending motion. While many seem to relish the improvisational element, they risk undermining the judicial element of the proceedings. Flynn’s team has sought the removal of Sullivan (a very difficult proposition, particularly in the D.C. Circuit). The intense opposition in the bar and teaching academy to Trump seems again to have greatly distorted the legal analysis, which fails to address the most troubling aspects of these orders. As I have previously acknowledged, there are good-faith arguments to be made but much of the analysis has ignored the strong precedent against a denial of the motion and rarely even acknowledge the serious implications for the rights of defendants in such action. I address some of the countervailing (and in my view controlling) authority in a separate posting.
Notably, the D.C. Circuit gave Judge Sullivan ten days to respond to the motion seeking his removal. Thus, these issues will presumably be addressed by Judge Sullivan before any hearing is held.
Here is the column: Continue reading “The Flynn Court Drifts Dangerously Outside Judicial Navigational Beacons”
The Los Angeles Times has posted a column by UCLA Law Professor and former U.S. Attorney under Bill Clinton, Harry Litman. The column that captures just how disconnected legal analysis has become in the Trump era. Litman in the column admits, to his credit, that the precedent overwhelmingly opposes a denial of motion to dismiss. However, Litman then encourages U.S. District Judge Emmet G. Sullivan to use the hearing to “make trouble” for the Justice Department — a goal disconnected from the inescapable legal precedent (and thus the judicial obligations) presented by the motion. There is a word for using hearing to gratuitously “make trouble” for the Executive Branch: judicial activism. I have previously written about the need to dismiss the Flynn case and criticized those who dismiss new evidence of wrongdoing by the prosecutors.[Update: Professor Litman has responded on Twitter and his views are included below]
For decades, the legal community has decried common practices used by prosecutors to coerce pleas from defendants. Prosecutors often stack up charges and then drain defendants until they agree to pleading guilty. There was a time when such abuses were regularly called out in leading newspapers. These are not those times. Continue reading “Out Like Flynn: How the Media Embraced Prosecutorial Misconduct As An Article Of Faith”
President Donald Trump and the White House appear to have violated a 2019 federal court order that it cannot block twitter accounts from the official White House account, @realDonaldTrump, based in the content of its tweets. The account, @realDonaldTrFan, has over 313,000 followers and savages the President regularly with parodies. If the site was blocked as reported, the action would be a flagrant disregarding of the authority of the federal courts.
Continue reading “White House Blocks Twitter Account In Apparent Violation Of Court Order”
For years, many of us who have long supporteded the American Civil Liberties Union (ACLU) have grown alarmed by its abandonment of core principles in the support of civil liberties in favor of support what seems a more political agenda. Under the leadership of a President Susan N. Herman and Executive Director Anthony Romero, the ACLU has dropped support for unpopular causes while aligning itself more closely with the Democratic Party’s position on issues ranging from immigration to sexual harassment. I have spent my life supporting the ACLU and speaking at its conferences. It has been very painful for many of us in the “Old guard” as these political advocates have taken over the board and organization. That has been evidenced as the ACLU moved to develop a more nuanced approach to “hate speech” after criticism following the Charlottesville protests. Free speech protection was once the touchstone of the ACLU which was fearless in its unpopular advocacy. It is now an area of open retreat for the organization as the leadership seeks to appease irate donors. Despite the right to carry being a constitutional right, the ACLU has indicated that it will not vigorously support the right to lawfully carry weapons at protests. That is no more evident than in the truly shocking filing of the ACLU to oppose due process rights for students at our colleges and universities, particularly in the imposition of a higher and more consistent evidentiary standard. While I found aspects of the brief to raise compelling points, the thrust of the brief is an attack on basic evidentiary protections that would have once been viewed as a position fundamentally at odds with the organization’s mission.
For weeks, we have discussed how the media, Democratic members, and a wide variety commentators have adopted a different standard in dealing with the allegation of sexual assault against Joe Biden. As soon as the presumptive Democratic nominee was accused, the rallying cry from the Kavanaugh hearing that “all women must be believed” was dropped. This week, the question may not be the applicability of the Kavanaugh standard but the Sessions standard. The recent declassification of documents shows that United Nations ambassador Samantha Power sought to unmask Michael Flynn’s name not once but on at least seven occasions. Yet, Power insisted that she had no recollection of even a single such request. When former Attorney General Jeff Sessions said that he had “no recollection” of meetings or other details, Democrats called for his prosecution for perjury. Will the Sessions’ standard apply to Power, or is this another example of standards changing with the affiliation of the accused? Continue reading “Did Samantha Power Commit Perjury? It Depends If The Sessions Standard Applies.”
By Darren Smith, Weekend Contributor.
Last week several parents on behalf of themselves and their minor children filed a lawsuit in the Superior Court of the State of Washington seeking injunctive relief and for the Court to declare the closures unconstitutional as the governor’s proclamations violate the “paramount duty on the part of the state to make ‘ample provision for the education of all children residing within its borders.”
The underlying information alleged within the lawsuit presents facts that Plaintiffs assert demonstrate that the current state of the COVID-19 virus’ threat no longer credibly constitutes an actual emergency and that the governor’s Proclamations as a result lack a foundational basis to remove children from schools. The suit further states the governor applied a wide brush to declare all Washingtonians as being at risk when the epidemiological evidence shows that the COVID-19 infection and death rate mirrors that of Influenza and Pneumonia infection rates of past years yet no public emergency was declared then. Furthermore, the illness and death rate for those less than twenty years in age is non-existent in the state and nearly everywhere else sampled. Plaintiffs proffer that the failing of the governor to limit the scope of application of the Proclamations to those actually vulnerable to the virus, the elderly and sick, infringed upon the constitutional rights of the plaintiffs and other children who have physiologically shown no significant vulnerability to the virus yet suffered the violation of their right to education resulting from an overly-broad inclusion under the declarations of state of emergency.
The complaint also mentions the sub-par nature of the education provided the minor Plaintiffs by the state, equating in one example only an hour of education and that much of what is expected is for grade school children to self-initiate and self direct their own education. One child, resides at times with a parent who has no Internet service at his residence and thus cannot facilitate an ample accomodation to meet the child’s special educational needs.
I recently criticized the calls of Democratic leaders like House Intelligence Committee Chairman Adam Schiff for greater censorship of the Internet and social media. Such calls have been growing for years but leaders like Schiff are citing the pandemic as a basis for speech monitoring and censorship. That opportunity has not been missed by countries like China which has used “fake news” on the pandemic to arrest dissident scientists trying to share suppressed information. Most recently, Hungary has started jailing people for up to five years, which political dissidents say is targeting political critics.
Continue reading “Hungary Shows How Fake News Is The Rallying Cry Of A New Generation Of Censors”
The United States Court of Appeals for the Fourth Circuit has rejected the effort by President Donald Trump to dismiss a lawsuit alleging a violation of the Emoluments Clause of the Constitution due to his accepting foreign government money through his luxury Washington hotel in Washington. I have been highly skeptical of these lawsuits, a view shared by other courts. The 9-6 opinion, below, however has been misrepresented or misunderstood by some. It is not a ruling on the merits but rather the technical standard for what is called an interlocutory appeal. It essentially blocks a Hail Mary play to shutdown the lawsuit. Nevertheless, the dissenting judges denounced the lawsuit as based on a “wholly novel and nakedly political cause of action.”
Continue reading “The Fourth Circuit Rejects Trump Appeal To Dismiss Emoluments Case”
A Time interview by Jared Kushner this week brought an unexpected windfall for the Biden campaign on one of the most embarrassing stories this month. Recently, former Vice President Joe Biden peddled a bizarre conspiracy theory that President Donald Trump had decided to halt the November election. As I pointed out in a column, the theory showed a striking lack of constitutional knowledge and was legally impossible. Yet, as if on cue from the Biden campaign, Kushner yesterday swept in and offered critics exactly what they were seeking in saying that it is “too far in the future to tell” whether the November election would be held. The answer is that it is not “too far” if you have a modicum of constitutional knowledge. The November election will be held unless there is a coup or an act of collective congressional insanity.
We have been discussing litigation of strip clubs denied pandemic relief, including a recent ruling in favor of such clubs in Nevada. I have been highly critical of such denials. Now, another judge, has ruled correctly in favor of these businesses. District Judge Matthew Leitman in Flint, Michigan, issued a preliminary injunction barring the Small Business Administration from excluding businesses that present live performances or sell products of a “prurient sexual nature” from loans under the Paycheck Protection Program. Businessman Jason Mohney who owns various clubs including Little Darlings (left) brought the action. The Trump Administration is dead wrong in litigating these cases to use the pandemic funds to impose a moral judgment on certain lawful businesses.
Continue reading “Loans For The Little Darlings? Strip Clubs Win Another Ruling For Pandemic Relief”
Speaking as an “experienced prosecutor,” President Donald Trump’s attorney, Rudy Giuliani, accused former FBI Director James Comey of treason. In an interview with John Catsimatidis on “The Cat’s Roundtable,” Giuliani made the claim, albeit in a convoluted way, that Comey’s involvement in the Russian investigation constitutes a capital crime. I have written numerous columns denouncing Comey’s actions, including leaking FBI memos to reporters (e.g., here and here and here and here). However, I have never challenged his patriotism and Giuliani’s charge is grossly unfair and legally unsupportable. I previously denounced charges by leaders like Bill Weld that President Donald Trump should be charged with treason. I have also denounced Trump’s claim that reporters, opponents, and even his own officials are guilty of treason. In a prior column, I discussed this “politics of treason.”Giuliani is engaging in the same blood sport of using the criminal code to paint critics as not just criminals, but traitors. Where one can dismiss some of these charges as political hyperbole, Giuliani was sure to preface his remarks as coming from “an experienced prosecutor.”
Below is my column in The Hill on a largely overlooked part of the recent material to be released in the Flynn case as well as the testimony released by the House Intelligence Committee: the focus on the Logan Act as the way to charge former National Security Adviser Michael Flynn. Indeed, I recently disagreed with former President Barack Obama on clearly false legal statements made about the Flynn case. However, within those false statements was a crushing irony. Obama is mentioned in the documents as discussing the use of the Logan Act against Flynn. While Obama decried (falsely) the lack of precedent for the dismissal of the Flynn case, he previously discussed the use of a clearly unconstitutional statute against Flynn that has never been used successfully to convict a single person since the start of the Republic.
Continue reading “Logan Act Is The Last Refuge For The American Prosecutorial Scoundrel”