Category: Constitutional Law

Constitutional Law, International, Media, Politics

Trump Denounces NYT Cyber Warfare Story As “A Virtual Act Of Treason”

I have previously criticized President Donald Trump for his relentless attacks on the media and his mantra of labeling such publications as the Washington Post and New York Times as “the enemy of the people.” He has also routinely called a couple dozen people and organizations “traitors,” as recently listed by Axios. This weekend Trump continued the attacks on the New York Times for a story that revealed attacks on Russia’s electric power grid. Trump declared that the publication of the article was a “virtual act of treason” — an act on a classic example of investigatory reporting. Trump’s continued attacks on the free press are not just highly embarrassing but highly disturbing from a President of the United States. With free speech, the free press is the very touchstone of liberty in our nation.

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Congress, Constitutional Law, Criminal law, Free Speech

Trump Supports Flag Burning Amendment

Today President Donald Trump declared support for a new constitutional amendment to allow Congress to override the First Amendment and criminalize the burning of the American flag. The legislation for the amendment was reintroduced by Sen. Steve Daines (R- Montana) and Sen Kevin Cramer (R-North Dakota). While I consider flag burning (of any country) to be deeply offensive, there is no need for such an amendment to combat the extremely few incidents of flag burning. It is certainly a popular political cause, but we should not amend the Constitution to reduce free speech, particularly given the low number of flag burnings.

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

Trump Is Still Three Nixons Short Of Watergate

Below is my column in The Hill newspaper on the recent testimony by former Nixon White House Counsel John Dean. While President Trump has personally attacked Dean, I have always liked and respected him. However, I disagree with his historical analogies. Comparisons to the Nixon case are fair, but they become forced when people insist that the conduct or record is the same. There are fundamental and likely determinative distinctions. There is a valid basis for an investigation but the record does not support the extent of comparison laid out by John Dean. John often seems to rank presidents on a Nixon scale. Yet, rather than giving Trump essentially “five Nixons,” I would put it as one or two pending further investigation. In other words, the case must still be made that this is “just like Watergate.”

Here is the column:

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Bizarre, Constitutional Law, Politics

Gillibrand Pledges Litmus Test For Judges After Saying Being Pro-Life Is Same As Being Racist

Sen. Kirsten Gillibrand (D-N.Y.) had struggled to distinguish herself from a large Democratic primary field by campaigning almost exclusively on women’s rights. That has not succeeded in moving Gillibrand from the bottom of the pack of candidates with less than one percent in most polls. However, Gillibrand doubled down this week with a startling interview where she not only pledged to impose a litmus test on any judicial nominees but said that being pro-life is equivalent to being racist or anti-Semitic.

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Constitutional Law, Criminal law, Free Speech, International, Media

“The Enemy of the People”: Trump Resumes His Attacks On American Media As China Bans The Washington Post
Flag of the Peoples Republic of China

I was been a long critic of President Donald Trump’s attacks on the media even though I have been critical of biased reporting by some outfits. Trump’s mantra of calling the media, and particularly the Washington Post and the New York Times, “the enemy of the people” was repeated on Twitter last weekend as China banned the Washington Post (and the Guardian) from access to its citizens. Both publications joined others behind the infamous “Great Firewall” of China’s massive censorship apparatus. While Trump has only called for greater liability for American media (rather than censorship), the confluence of these stories is concerning. China can cite our own president in declaring the Washington Post as an enemy and “fake news” to justify its censorship of one of the last remaining free press accessible to some Chinese.

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Academia, Constitutional Law, Courts, Criminal law, Lawyering

Turley To Speak At 2019 Judicial Conclave In New Mexico

Today I have the honor of delivering a keynote speech to the 2019 Judicial Conclave in New Mexico at the Hyatt Regency in Albuquerque. I will be discussing the history, cases, and evolution of the “cultural defense” in federal and state courts. The speech is at 11:15 am on Friday at the conference held at the Hyatt.

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

The Politics and Pathology of The House Litigation Addiction

Below is my column in The Hill newspaper on rejection of the lawsuit by the House of Representatives against the order issued by President Donald Trump to build the wall on the Southern border under the National Emergencies Act. I had previously testified against this lawsuit as a reckless and unnecessary move by the house. It is part of a litigation strategy that is clearly driven more by political than legal calculations.

Here is the column:

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Constitutional Law, International, Media, Politics

Australian Government Raids ABC Headquarters After War Crimes Story

We have been discussing how the free press is under attack in both the United States and Europe. Like free speech, Western nations appear to have lost patience with free press protections. The latest example is an outrageous raid on a leading media organization in Australia. On the heels of the Assange case and other attacks on media protections, the raid on the Australian Broadcasting Corporation raises a chilling prospect that the free press could soon go the way of free speech in the West.

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

Mueller’s Mount Sinai Moment Leaves Media With A Crisis of Faith

Below is my column in The Hill newspaper on the press conference held by Special Counsel Robert Mueller and his refusal to answer questions from the media (or any questions from Congress beyond what is written in his Report). Mueller not only demanded silence but faith from the media, which surprisingly obeyed. Few reporters noted the direct contradictions in Mueller’s brief statement or the many unanswered questions that he left in his imperious wake. Since Attorney General Bill Barr has already testified on the process and his decisions related to the Report, there was nothing preventing Mueller from answering questions about his own decisions. Instead, Mueller simply said that the media would listen and remain silent . . . and the media dutifully complied.

Here is the column:

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Columns, Constitutional Law, Criminal law, Politics, Society

Mueller’s Lack Of Explanations Raises New Questions of His Motivations On Three Key Decisions

Below is my column in The Hill newspaper on three unanswered and troubling questions for Special Counsel Robert Mueller. The concerns over Mueller’s motivations was heightened by the justifications that he has offered for some of his decisions like not reaching a conclusion on the weight of the evidence on obstruction. Many of us view Mueller’s rationale (based on the DOJ policy not to indict a sitting president) to be not just unprecedented but illogical. Putting aside my long disagreement with the argument that a president is immune from indictment, that policy (and the underlying memos) say nothing about a Special Counsel reaching conclusions on the evidence of possible criminal acts. Indeed, that is the core purpose of a Special Counsel. If one rejects the rationales of Mueller, you are left with a question of motivation in maintaining these positions.

Here is the column:

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Constitutional Law, Politics

WA Supreme Court Upholds Fine Against Presidential Electors Who Failed To Cast Vote In Accordance With Popular Vote

By Darren Smith, Weekend Contributor

The Washington Supreme Court upheld the imposition of a thousand dollar fine against three Presidential Electors who violated their oath by voting in the Electoral College for candidates other than those winners of the popular vote in the 2016 presidential election. In this latest episode of electioneering in American politics, individuals took it upon themselves to decide who they believed deserved election and not support that of the common voter.

In this case, three electors reportedly perceived that then Candidate Donald Trump would win the election and to at least in a hail Mary type of stunt forestall this by casting their vote for Colin Powell instead of Hillary Clinton who won the state’s popular vote. Pursuant to the Constitution, if a candidate fails to receive an absolute majority of the Electoral College Vote the election is then decided by the House of Representatives, which the electors reportedly perceived would be more conducive to a win by Clinton.

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Bizarre, Constitutional Law, Criminal law, Free Speech, International, Media

Poll: Only 18 Percent Of Germans Feel Free To Voice Views In Public

For years, we have discussed the unrelenting attacks on free speech in Europe with the expansion of hate speech laws and the general criminalization of speech, including international speech crimes. Some in the United States would like to follow down that dangerous path (and universities are reinforcing the view of the need to regulate speech). The implications of such anti-speech policies are evident in Germany where a survey, conducted by the Institut für Demoskopie Allensbach(and published in the Frankfurter Allgemeine Zeitung) found that only 18 percent of Germans feel free to express their views in public. It is the most vivid example of how Europeans are learning to live without free speech. Undeterred, Annegret Kramp-Karrenbauer, the successor to Angela Merkel, is now calling on greater limits on free speech during election periods — a concept that would normally be viewed as counterintuitive outside of the new European model.

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Academia, Bizarre, Constitutional Law, Free Speech, Media, Politics, Society

Trump Again Calls For Changing Libel Laws After NYU Professor’s Faked Quote [Updated]

President Donald Trump has previously — and unwisely — called for changing libel laws to combat what he calls “fake news.” I have previously criticized  Trump for his calls for greater liability of the media for its coverage of the controversies surrounding his Administration, including his desire to sue Saturday Night Live.  Now, due to the publication of a false quote from Trump by New York University Professor Ian Bremmer, Trump is again calling for a change in the law and ignoring that our defamation standard is anchored in the first amendment. Ironically, Trump himself was recently accused of posting a doctored clip of Nancy Pelosi and has repeatedly retweeted false or defamatory statements.

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Columns, Constitutional Law, Criminal law, Free Speech, Justice, Media, Politics, Society

The Assange Case Could Prove The Most Important Press Case In 300 Years

Below is my column for BBC on the Assange espionage charges. As I have written, I believe that Attorney General Bill Barr is dead wrong on these charges — a view apparently shared by at least two of the prosecutors on the team. Until now, President Donald Trump’s disturbing rhetoric against the media has been disconnected from actual moves against the media with the exception of suspending press passes or changing rules for the White House press corp. This is a quantum leap in the wrong direction. Indeed, this prosecution could easily become the most important press case since John Peter Zenger.

Here is the column:

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Constitutional Law, Criminal law, Free Speech, International, Media

Bill Barr Is Wrong On Assange

Bill Barr has been (in my opinion) wrongly attacked for many of his actions with regard to the Special Counsel Report. Indeed, I defended his decisions in print and I testified in favor of his confirmation. I still believe that he is an excellent choice for Attorney General. However, on the charges against Julian Assange, he is wrong. Dead wrong. As I stated in a recent column, the use of the Espionage Act strikes at the heart of the First Amendment. Now, the Washington Post is reporting that two prosecutors involved in the Wikileaks case argued against the new charges.

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