Former President Barack Obama is being quoted from a private call that the “rule of law is at risk” after the Justice Department moved to dismiss the case against former national security adviser Michael Flynn. Obama reportedly told members of the Obama Alumni Association that “There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.” Without doubting the exhaustive search referenced by President Obama, he might have tried calling one “alum”: former Attorney General Eric Holder. Holder moved to dismiss such a case based on prosecutorial errors in front of the very same judge, Judge Emmet Sullivan. [Notably, CNN covered the statements this morning without noting the clearly false claim over the lack of any precedent for the Flynn motion]
Category: Constitutional Law
In an unanimous opinion, Justice Ruth Bader Ginsburg excoriated the United States Court of Appeals for the Ninth Circuit for “an abuse of discretion” when it brought in third parties to argue the case and ruled on that basis. That approach “drastically” changed the judicial norms of having the parties present arguments. The Ninth Circuit opinion was written by A. Wallace Tashima who ruled with Marsha S. Berzon, and Andrew D. Hurwitz. Hurwitz was brought into the case after Judge Stephen Reinhardt died. Continue reading “A “Radical Transformation”: Supreme Court Unanimously Overrules The Ninth Circuit”
Over a week ago, I wrote a column calling for the Justice Department to drop its case against former National Security Adviser Michael Flynn. I have long been a critic of the case but the new evidence undermined not just the legitimacy of the prosecution but of the Justice Department itself. The Justice Department just moved to dismiss the case, a belated but commendable decision. The Flynn case represents one of the most ignoble chapters of the Special Counsel investigation. Notably, the motion itself could lay the foundation for suing on the basis of malicious prosecution.
While Judge Emmet Sullivan could dismiss the charges on the papers (an unopposed motion), I would expect a hearing to be called. There is a great irony here. Sullivan’s last hearing on sentencing led to controversial statements from the bench and a delay in sentencing that resulted in an easier path to dismissal.
The Supreme Court today unanimously threw out the convictions of Bridget Kelly, a former aide to Christie, and Bill Baroni, a former Port Authority official, for their role in “Bridgegate.” The dispute involved the controversial closing of lanes on the George Washington Bridge to create traffic problems for the mayor of Fort Lee, N.J., who had refused to endorse Christie. Notably, the Court rejected the very arguments raised by some experts against Trump and relied on some of the same analysis that I raised in my testimony in the Trump impeachment against such claims. Continue reading “Supreme Court Unanimously Throws Out Bridgegate Convictions — And Rejects Prior Legal Arguments Against Trump”
We have been discussing most recent case against televangelist Jim Bakker. Bakker was mentioned in my recent column on why some religious claims raised in the pandemic are dubious. Now, Bakker is making sweeping claims that he has a religious right to sell a fraudulent cure for the coronavirus. His new lawyer, former Gov. Jay Nixon, is arguing that the free exercise clause gives Bakker the right to sell (for profit) a cure that could discourage the stricken from getting medical treatment or taking real precautions.
Continue reading “Jim Bakker Claims The Religious Right To Sell Fraudulent Cure To The Coronavirus”
Democratic politicians like Sen. Chuck Schumer (D., N.Y.) have been railing against what they view as an undemocratic effort to suppress votes. Former Vice President Joe Biden has even peddled a conspiracy theory that President Donald Trump was certain to halt the November election. However, a New York judge has ruled that it is the Democratic party that violated the Constitution in cancelling the June 23rd presidential primary to effectively anoint Biden as the party nominee. What was particularly striking was the highly dubious argument presented in court by the Democratic Party.
With the release of the new material from the case of Michael Flynn, an array of experts came forward to assure the public that it was all standard procedure for investigators to conclude that there was no criminal conduct uncovered and then prosecutors creating a crime (including the use of a clearly unconstitutional law never used to convict anyone since the start of the Republic). Many of these same experts who have been espousing untethered (and ultimately rejected) theories for criminal and impeachment charges for years. Yet, what was most striking is how many also rejected any claim that the undisclosed evidence, at a minimum, violated Brady, the case requiring the government to turn over exculpatory information. Indeed, Ben Wittes, a staunch defender of James Comey, assured readers “while you might not know much about federal law enforcement,” this is all “standard practices.” In fact, this is a clear and flagrant violation of the both Brady and the orders of Judge Emmet Sullivan. The fact that such violations are also dismissed by mainstream media and experts reflects how rage has distorted legal analysis in this Administration.
Continue reading “Did The Mueller Team Violate Brady and Flynn Orders?”
We recently discussed the controversy when a Nevada brothel filed for pandemic stimulus money as a small business forced to suspend operation. Now, U.S. District Judge Lynn Adelman has ruled (correctly) that the owners of four Silk Exotic Gentleman’s Clubs in Milwaukee and Middleton are entitled to emergency loans. During this litigation however there was a surprising twist in arguments over whether strip joints appeal to prurient interests. Continue reading “The Bare Necessities: Federal Court Rules That Strip Clubs Are Entitled To Pandemic Loans”
Below is my column in The Hill on calls for increased censorship on the Internet and social media due to the pandemic. While academics are writing that “China was . . . right”, China was celebrating World Press Day by sentencing journalist Chen Jieren to 15 years in prison for “picking quarrels and provoking trouble, extortion, illegal business operations and bribery.” It is an ironic moment to herald China’s censorship of the media when the evidence mounts that China concealed and censored information on the virus outbreak in January.
Here is the column:
There is a new bizarre theory lighting up the Internet that, with Biden continuing to struggle as a presumptive nominee, Democrats are considering the prospect of a DNC engineered ticket of Hillary Clinton and Barack Obama. We have previously discussed the rumbling over months about Clinton allies pulling off a convention swap to make her the nominee. However, the story has brought back to life a dubious theory put forward a couple years ago by Michael Dorf, a professor at Cornell Law School, that Obama could constitutionally join a ticket as Vice President and even return as president. I found Dorf’s argument interesting, but this theory has taken flight in the imaginations of many on the Internet. The Washington Post column shows how the media seems to have endless space for any theory that fills a void for liberal fantasies whether it is unsupportable criminal interpretations against Trump or returning a president to power despite clear constitutional prohibitions on such a move. There is no constitutional foundation for this constitutional urban legend of Obama’s return. However this is the version of Fantasy Football for liberals. The problem is that many are taking this seriously.
Continue reading “No, Obama Cannot Be Part Of A Dream Clinton/Obama Ticket”
Below is my column in The Hill newspaper on the new evidence released in the case of Michael Flynn. As I said two years ago, it is unlikely the Judge Emmet Sullivan will dismiss this case regardless of such abuses, but he should. As we discussed, there has been a concerted effort by media and legal experts to shrug away these highly disturbing documents by saying that such abuses happen all the time. Journalist Ben Wittes, one of James Comey’s most vocal defenders, went even seemed to make such abuse of Flynn into a victory for racial justice:
“If you’re outraged by the FBI’s tactics with Flynn, keep in mind that they do these things every day against drug dealers, gang members, and terrorists. Except those people are black, Hispanic, and Middle Eastern—not “lock ‘er up” lily white.”
Many of us have spent our careers fighting such abuses for people who are not “lily white.” That does not excuse abuses of people There was a time when MSNBC, CNN, the Washington Post and other outlets were voices against such prosecutorial abuse. However, in this age of rage, even this record is dismissed as “routine” to avoid undermining a crushingly consistent narrative that the Russian investigation was based on real crimes, albeit collateral crimes. The “nothing to see here” coverage sacrifices both legal and journalistic values to to maintain a transparently biased narrative.
Here is the column: Continue reading “The Flynn Case Should Be Dismissed In The Name Of Justice”
Last night, many of us were digesting the highly disturbing documents released in the case of former National Security Adviser Michael Flynn. As I discussed this morning in a Hill column, the documents reveal an effort to entrap Flynn, including the use of a blatantly unconstitutional statute to achieve that “goal.” However, there appears far more than has not been released, according to various sources. The release of the Flynn documents highlight what Attorney General William Barr said on “The Ingraham Angle” on April 10th and stated that “far more troubling” material will be released as a result of the investigation of U.S. Attorney John Durham. I believe it is a mistake for Barr to give such foreshadowing interviews before the release of the Durham report. While I agree with Barr ordering these reviews (and his view of the evidence so far), these interviews only undermine the credibility and that of the eventual report. (For full disclosure, I testified in favor of Barr’s confirmation before the Senate Judiciary Committee). Putting that aside, the evidence strongly supports Barr’s effort to force the disclosure of material that has been buried despite the claims of full investigations by Congress and the Inspector General. Bizarrely, the media and many liberal commentators are struggling to ignore these troubling disclosures and the obvious abuses that they reflect within the Justice Department.
Continue reading ““Far More Troubling”: Flynn Document Release Could Foreshadow Blockbuster Report”
Below is a longer version of my column that ran in the Los Angeles Times on the danger of using antibody testing as a basis for discrimination. The concept of a pandemic passport of course will only be plausible if such antibodies truly yield a form of immunity. The WHO has declared that there is no evidence to support that claim. Yet, plasma treatments are reportedly successful.
Here is the column: Continue reading “Pandemic Passport And The Danger Of Immuno Discrimination”
There is an interesting fight brewing in Jackson, Mississippi over gun rights — a dispute that could foreshadow the type of constitutional concerns that Attorney General Bill Barr referenced earlier. Mayor Chokwe Antar Lumumba relied on state law for emergency orders and the current pandemic to justify a ban on open carry within city limits. That drew an objection from Attorney General of the State Lynn Fitch that such an order is unconstitutional. I previously wrote how churches could be restricted under the pandemic. However, this is an example of officials exceeding their authority in limiting the exercise of a constitutional right. Open-carry has not been declared a federal constitutional right, but the justification by Lumumba would be difficult to maintain on a legal basis. Continue reading “Mississippi Mayor Bans Open Carry As A Public Health Measure During The Pandemic”
Below is my column in The Hill on a conspiracy theory being pushed by presumptive Democratic nominee and former Vice President Joe Biden that President Trump is going to order a halt to the November election. This Sunday, one of the frontrunners for the Vice President slot, Stacey Abrams, was pressed by CNN’s Jake Tapper on Biden’s view that Trump will use the Post Office to delay the election. Tapper did an excellent job in pursuing a direct answer and Abrams insisted it is “not a conspiracy theory” and repeated the nebulous connection to the postal service. It is a conspiracy theory and, as I stated yesterday, passing around the tin foil hats is hardly a recommendation for vice president. Most striking is that, after bizarrely insisting that this was a credible theory on CNN, NBC’s Chuck Todd did not even ask her about it in a low-impact interview. Many of us have been critical of the failure of some Trump supporters to call out the President over such indefensible statements as his disinfectant comments (and later clearly untrue denial). The same is true for Democrats who ignore bizarre or untrue statements like this one from their leaders.
Here is the column: Continue reading “Biden Goes Postal: The Vice President’s Conspiracy Theory Is Given Credence By The Media And Democratic Leaders”