Category: Constitutional Law

Columns, Constitutional Law, Criminal law, Politics

Roger Stone Should Be Given A New Trial, Not A Pardon
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Below is my column in the Hill newspaper on the calls for either a new trial or a presidential pardon for Roger Stone. I believe that he has a far greater claim to the former than the latter.

While I believe that the sentence of 40 months was longer than was warranted in this case, Judge Amy Berman Jackson sentenced Stone where some of us had predicted on the guidelines range. It was less than half of what the prosecutors originally asked for. Yet, the decision to go forward with the sentencing seemed odd given the substantial claim of juror bias raised by the defense in a pending motion. The other pending motion for disqualification is quite weak, but the motion for a new trial in my view should be granted. Although the odds are against Jackson ordering a new trial, it is clear that the foreperson has no business being on this jury and that her past comments raised significant and legitimate questions over whether Stone was given an impartial jury.

Here is the column:

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Academia, Constitutional Law

Turley To Speak At University Of Virginia

On Monday, I will be speaking on the recent impeachment trial at the University of Virginia’s Miller Center for Public Policy. The event, “The Trump impeachment episode: Party wars and the Constitution,” will be a discussion with Claire Finkelstein, Algernon Biddle Professor of Law and Professor of Philosophy, of the University of Pennsylvania Law School. It will be moderated by Sidney M. Milkis, the White Burkett Miller Professor of Politics at the University of Virginia. The event will be held Monday, February 24, 2020 for 11:00 – 12:15 at The Miller Center, 2201 Old Ivy Rd, Charlottesville, VA 22903.

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Columns, Congress, Constitutional Law, Criminal law, Media, Politics

“I Have Been Traduced”: Trump’s Moves Against Impeachment Witnesses Are Neither Unlawful Nor Unprecedented

Below is my column in the Washington Post on the continuing controversy over the actions taken against impeachment witnesses by President Donald Trump. I recently explained that these actions are not, as claiming on CNN, clear criminal acts of witness retaliation. While I was critical of the moves, this column addresses why they are neither unlawful nor unprecedented.

Here is the column:

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Constitutional Law, Courts, Free Speech, Politics, Supreme Court

Ginsburg Declares ERA Dead And Calls For New Campaign

I have long criticized Supreme Court Justice Ruth Bader Ginsburg for making comments on political issues to liberal and academic groups.  While not unique on the Court in what I have called the era of “celebrity justices”, Ginsburg is something of recidivist in abandoning the long-standing avoidance of political discussions by justices as well as issues that are likely to come before the Court.  Despite repeated controversies in speaking publicly on political issues, Ginsburg is clearly undeterred.  This week, Ginsburg tripped both wires in discussing a matter in litigation and heading toward the Court while encouraging what would be a political campaign for a new constitutional amendment. As we have discussed, there is currently litigation over whether the Equal Rights Amendment was ratified by the recent vote in Virginia. Ginsburg did not wait for the appeal and announced that the ERA is dead. She then called for a new ERA movement. Both statements were inappropriate, but the statement on the status of the amendment was wildly at odds with standards of judicial restraint and ethics.

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Congress, Constitutional Law, Justice, Politics, Society

“A Significant Escalation”: Justice Department Sues Sanctuary Cities

In what Attorney General Bill Barr has called a “significant escalation,” the Justice Department is filing actions against sanctuary cities over what is alleged as interference with federal enforcement of immigration laws and removals. As discussed yesterday, both parties seems to be going “all in” on immigration from sharply opposing positions.

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Columns, Congress, Constitutional Law, Media, Politics

A Verdict On Our Times: How The Senate Trial Left Us With Rage Over Reason

Below is my column with the BBC on the impeachment verdict and its aftermath. A new Hill/HarrisX poll shows President Donald Trump at a record high of popularity — finding the same 49 percent level of the earlier Gallup poll. In other words, people heard what they wanted to hear in the trial — and most heard nothing at all by tuning it all out. Indeed, as discussed below, it ultimately did not seem to matter what anyone actually said as opposed to what people wanted to hear.

Here is the column:

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Columns, Congress, Constitutional Law, Media, Politics

“My Open Grave”: Mitt Romney And Why Washington Admires Bipartisanship . . . At A Distance

Below is my column in the Washington Post on the vote of Mitt Romney and how his independence is a virtue celebrated selectively by the political establishment and the media. One thing that should unite everyone is the inexcusable attack on Romney’s reference to his faith by President Trump. Romney grew emotional on the Senate floor when he dismissed the “unimaginable” attacks as paling in comparison to what he would lose by violating an oath to God.  Trump responded at the National Prayer Breakfast by declaring.” “I don’t like people who use their faith as justification for doing what they know is wrong.” The one thing that I never thought would be questioned is the faith of Mitt Romney, who not only is widely known as a deeply religious Mormon but has been discussed as a possible head of the Mormon Church.  I have never been a fan of Romney’s policies, particularly his environmental policies (which are in line with Trump).  However, I have never heard anyone suggest that Mitt Romney’s faith is anything but genuine and heartfelt. I have no problem with Trump attacking the merits of his decision but the attack on his motivation is well beyond the pale.

Here is the column:

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Congress, Constitutional Law, Media, Politics

Trump Wins Major Emoluments Decision

I have previously written about my fundamental disagreement with the aspects of the emoluments challenges filed by various academics. We discussed the prior denial of the challenge by the Fourth Circuit. Now, the D.C. Circuit has issued a unanimous rejection of the challenge. It is a major victory for the Trump Administration and again raises the questions over the coverage of these claims, which largely omitted discussion of the considerable barriers facing these filings. It is a rejection of the challenge brought by Senators Richard Blumenthal (D., Conn.) and 215 other members of Congress.

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Columns, Congress, Constitutional Law, Media, Politics

The “Liberated” Pelosi Should Now Step Down As Speaker

Below is my column in the Hill newspaper on the controversial conduct of Speaker Nancy Pelosi at the State of the Union this week. Pelosi broke with tradition on three points: changing the greeting for the President, making demonstrations of criticism from the Speaker’s chair, and ripping up the address in protest. I previously called upon Pelosi to apologize and commit to maintaining decades of tradition for the Speaker to be neutral in the State of the Union to represent the House as a whole — Republicans and Democrats. Pelosi yesterday however doubled down and declared her protests to be perfectly appropriate and liberating. Her declaration of being “liberated” is itself both confirmatory and chilling. She liberated herself from traditions of neutrality that extends back centuries to the English Parliament.

Now liberating from rules and tradition, Pelosi is free to convert the Speakership into a more partisan role at the SOTU, including the use of the position to mock, troll, or taunt a president addressing both houses. I have joined others in criticizing Trump’s failure to shake the hand of Pelosi and his highly inappropriate comments yesterday questioning Pelosi’s and Romney’s faith. However, that does not give Pelosi license to violate this important and unbroken tradition as Speaker at the State of the Union. Indeed, the silence of Democratic members in the face of Pelosi shattering decades of tradition is equally shocking. In remaining silent, Democrats of both houses have lost any moral high ground.

Here is the column:

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Columns, Congress, Constitutional Law, Courts, Lawyering, Media, Politics

The Trump Verdict: Why Bad Cases Can Make Bad Law

With the exception of one vote on one article of impeachment (by Sen. Mitt Romney), the acquittal of President Donald Trump went as predicted with a party-line vote. Notably, however, the vast majority of senators, including a significant number of Republican senators, expressly rejected the core defense offered by Professor Alan Dershowitz in their statements –rejecting the position that impeachable offenses must be based on criminal allegations and does not include allegations of abuse of power. What we did not see, as discussed in this column in The Washington Post, was a bipartisan rejection of Article II.

Here is the column:

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Bizarre, Congress, Constitutional Law, Politics, Society

Pelosi Shreds Decades Of Tradition In Demonstrating Against Trump
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This morning I have a column in the Hill newspaper on my reaction to the disgraceful conduct of Speaker Nancy Pelosi and various Democratic members at the State of the Union address last night. As I tweeted during the address, her conduct tore up more than a speech, but decades of tradition and left any semblance of civility in tatters on the House floor.

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Constitutional Law, Free Speech, International, Media, Politics

French Teenager Forces Free Speech Debate Over Her Calling Islam A “Religion Of Hate”

We have previously discussed the alarming rollback on free speech rights in the West, particularly in France (here and here and here and here and here and here and here). A teenager has sparked a national debate about blasphemy in France after an Instagram post calling Islam a “religion of hate”. Indeed, France has emerged as one of the greatest threats to free speech in the West and we continue to face calls for European-style speech crimes, including calls by its President on the floor of the House of Representatives. Now a teenager in France has triggered a debate over its plunge into speech crimes and regulation after characterizing Islam as “a religion of hate.” She can now be criminally investigated for hate speech under the notorious French speech law.

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Columns, Congress, Constitutional Law, Lawyering, Media, Politics

How The House Lost The Witnesses Along With The Impeachment

Below is my column in The Hill newspaper on the continued effort to ignore the obvious and catastrophic decision of the House leadership to rush the impeachment vote by Christmas rather than complete the record against President Donald Trump. This denial continues despite the fact that, after saying that they had no time to seek witnesses or favorable court orders, the House leadership then waited a month before released the articles of impeachment. Clearly, the record would have been stronger if the House waited and sought to compel witnesses. It also would have kept control of the record and the case. I encouraged them to vote in March or April, which would have given them plenty of time to secure additional testimony and certainly a number of favorable court orders. However, recognizing this obvious blunder would take away from the narrative that the case failed only because the Republicans were protecting Trump in the Senate.

Here is the column:

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Bizarre, Columns, Congress, Constitutional Law

The Dershowitz Defense: How Dershowitz Made The Case Against His Own Defense

Below is my column in USA Today on the Dershowitz defense and why he reached the right conclusion for manifestly the wrong reason. Dershowitz has maintained that his views were distorted by the media and critics, but at base his argument is still deeply flawed. The problem is not (and never should be) that he is at odds with the vast majority of constitutional scholars. The problem is that he is at odds with the vast majority of constitutional sources. Moreover, his examples if anything proved the case against his defense.

Here is the column:

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