Category: Constitutional Law

Trump Administration Ignored Internal Legal Opinion In Withholding Tax Records

I recently testified in the House Judiciary Committee that the Congress must challenge the refusal of the Trump Administration to turn over certain records and to bar certain witnesses from oversight investigations. While I also disagreed with some of Congress’s actions, the Trump Administration has cannot withhold material from oversight authority on the basis of undeclared privileges or ill-defined objections. This is the case in the refusal to turn over tax records demanded by Congress. As I stated earlier, the House has made only generalized claims of a legislative purpose for such records. Nevertheless, the law clearly favors Congress in seeking such material. Notably, the Trump Administration has not claimed executive privilege but only that the Committee lacks a legislative purpose. That is not enough. Now, it appears that the Administration was warned by its own confidential Internal Revenue Service legal memorandum that it would be violating the law by withholding the records without an executive privilege claim. It ignored the legal memorandum and refused the congressional demand.

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Florida To Impose Sweeping Anti-Semitism Ban On Florida Schools

Florida Republican Gov. Ron DeSantis is reportedly planning to travel to Israel and use the trip to sign a bill that imposes a sweeping anti-Semiticism law that raises serious free speech implications. Florida and other states are enacting a bill being duplicated through the country that would ban statements that “making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as a collective.” I have previously raised my concerns over the curtailment of free speech from such laws as well as bans on support for boycotts of Israel. While courts have struck down the boycott laws, supporters are still trying to curtail speech under ill-defined hate speech models. Recently, the Israeli ambassador to the United Nations called for an international ban on anti-Semitic speech.

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Poll: Almost Half Of College Students Do Not Believe First Amendment Protects Hate Speech

We have previously discussed how speech codes and regulations are changing the way students are viewing free speech. There is now a steady message for students from elementary school to college that speech must be regulated and that even people can be punished for not just hate speech but the ill-defined category of “microaggressive” speech. Past polls showed that one-third of students believed that violence is justified in dealing with some exercises of speech. Now a survey of college students found almost half do not believe that hate speech is protected by the First Amendment — a chilling indication of the collapsing support for traditional free speech values on our campuses.

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Report: Democrats Hold Closed Door Caucus Rejecting Impeachment Move . . . Without A Single Dissenting Voice

Democrats, including Speaker Nancy Pelosi, have been hitting the airways to declare that the evidence of impeachable acts by President Donald Trump is not only clearly established by the Special Counsel Report but additional impeachable acts are unfolding every day. However, on Wednesday, a closed door caucus was held with a very different and apparently uncontested view: no impeachment. I have previously written about the disconnect of what Democrats are telling their voters and what they are actually saying to each other. Since before the midterm election (when impeachment was a big sell for giving the Democrats the majority), I do not believe that the House leadership ever intended to allow an impeachment to move forward against Trump because it is not in their political interests.

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Turley Testifies In House Judiciary Committee On Trump Executive Privilege Assertions

I will be testifying this before the House Judiciary Committee on President Donald Trump’s assertion of executive privilege and congressional oversight. The Hearing will be held 10 a.m. on Wednesday, May 15th, in Room 2141 in the Rayburn House Office Building. My testimony is linked available below.

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Turley To Testify Before House Judiciary Committee On Executive Privilege

I will be testifying tomorrow before the House Judiciary Committee on President Donald Trump’s assertion of executive privilege and congressional oversight. The Hearing will be held 10 a.m. on Wednesday, May 15th, in Room 2141 in the Rayburn House Office Building.

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Graham Encourages Trump Jr. To Defy Senate Subpoena

There was a curious moment this weekend when Sen. Lindsey Graham, R-S.C., the chairman of the Senate Judiciary Committee, publicly advised Donald Trump Jr. that he should ignore the subpoena issued to him by the Senate Intelligence Committee. It is virtually unprecedented for the chairman of one Senate Committee to encourage a witness to defy another chairman of a Senate Committee. It is even more bizarre when the first chairman heads the Judiciary Committee.

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Constitutional Or Conceptual Crisis? The Atonal Strategy of the House Investigations

Below is my column in The Hill Newspaper on the increasingly disconnected elements in the investigations by the House of Representatives. The question is whether there is a true strategy behind these moves other than an investigation for investigation’s sake.

Here is the column:

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Irish Referendum To Change Requirement of Couples To Prove Separation From 4 Years to 2 in Divorce Cases

By Darren Smith, Weekend Contributor

I must admit that I am at a bit of a loss on this one. Presently, the Constitution of Ireland requires that couples prove to a family court they have remained separated for four of the preceding five years as part of a petition to dissolve a marriage. Now, a widely heralded amendment is headed to the polls to reduce the separation period to two of the past three.  Forgive me for thinking aloud but, what state interest is there in requiring any time frame?

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A Question Of Contempt: Why The Barr Vote Could Prove Costly For Congress

Below is my column in The Hill newspaper on the vote of the House Judiciary Committee to hold Attorney General Bill Barr in contempt of Congress. There are a number of conflicts with the Administration that present favorable grounds for Congress in a court challenge. This action is the least compelling and could ultimately undermine congressional authority with an adverse ruling.

I am honestly confused by some of the criticism including the recent column by Andrew Napolitano in Fox.com where he states “Barr knows the DOJ is not in the business of exonerating the people it investigates. Yet he proclaimed in his letter that Trump had been exonerated.” I like and respect Napolitano a great deal but that is not what the letter said. What the letter said was “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: ‘[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.’” That is true. Indeed, it was odd that Napolitano would focus on the collusion/coordination issue when many people have accepted that the conclusion of no criminal conduct was clear from the report. At no point does Barr say that Trump was exonerated. Indeed, he included the most damaging line from the report on obstruction in saying that Mueller expressly did not exonerate him on that question. Barr was addressing the conclusions on criminal conduct and I still do not see where, as stated by my friend Andrew, where Barr in the letter was “foolish,” “deceptive,” “disingenuous,” or “dumb and insulting.” Those are powerful accusations against any lawyer and should be tethered to a clear example in the letter of a false or deceptive statement.

The Napolitano letter also ignores Barr’s statement that the report would have been released relatively quickly (removing the need for the summary) if Mueller complied with his request and that of Rod Rosenstein to identify grand jury material. It remains inexplicable that Mueller allegedly ignored those reasonable requests from his two superiors. As a result, Mueller’s people had to go back through the report to identify the Rule 6(e) material, a previously requested.

Update: The Democrats are now arguing that they are not demanding the redacted Grand Jury information despite weeks of calling for the full and unredacted report — and a subpoena that demands the entire unredacted report. They now insist that they want Barr to ask the Court to release the small percentage of Grand Jury information. That is not likely in light of the long record at the Justice Department.

Here is the column:

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Pelosi: Trump Wants Us To Impeach Him

Before the midterm elections, I wrote about the dubious pitch to voters that, if given back the House, the Democrats could impeach President Donald Trump. The fact is that the Democratic leadership was never willing to impeach Trump and, once the House flipped, proceeded to place as many delays and barriers in the path of impeachment as possible. The challenge is to appear like you want to impeach without actually moving to impeach. The result is a strategy of planned obsolescence — to run out the clock on impeachment while convincing voters that they are actually eager to impeach. The problem is that voters still believe the rhetoric and are getting ticked off by the failure to start impeachment inquiries when the leadership insists that Trump has committed impeachable offenses. Indeed, I have written that if these politicians are speaking truthfully about their belief that impeachable offenses have occurred, they have a duty to impeach and not shrug off their responsibility by blaming the expected result in the other house. This week Pelosi took a different spin: we cannot impeach Trump because that is what he wants.

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More Scream Than Substance: Why the Senate Missed The Point Of Barr’s Testimony

Below is my column in The Hill newspaper on Barr hearing and its aftermath. The Democrats continue to focus on Barr rather than the report. Congress now has 98 percent of the original report available to it. Only two percent was redacted from the sealed copy in conformity with federal law barring the release of grand jury material. Less than ten percent of the report is redacted in the public version and only a small percentage in the key obstruction section is redacted. However, the leadership prefers to fight over the remaining two percent and the Barr letter than to commence actual impeachment proceedings against Trump. I wrote back in 2017 that the Democratic leadership has long been opposed to any actual impeachment of Trump. There are obvious reason why the Democratic leaders are opposed to removing Trump. That position has held firm as leaders struggle to assure voters that they want to impeach without actually impeaching. The result is a mutual effort by Congress and White House to run out the clock. The result is political theater at its worst. Continue reading “More Scream Than Substance: Why the Senate Missed The Point Of Barr’s Testimony”

Trump Opposes Mueller Testimony As Declaring That McGahn Will No Testify

President Donald Trump has continued to oppose the testimony of key witnesses like former White House Counsel Don McGahn. He has now added his opposition to the testimony of Robert Mueller himself. It is a position that signals a certain defensive, if not fearful, posture with regard to the report. Congress clearly has a legitimate interest in hearing from these witnesses and will prevail in forcing their appearance. More importantly, it is not in the public’s interest for the White House to seek to silence such witnesses with lingering questions over the allegations against the President. I have long expressed my skepticism over the chances of a collusion or obstruction charge against Trump. However, Congress should move quickly to challenge any such block on key witnesses.

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Sandburg’s Rule: Congress Shifts Attention Away From Mueller’s 400-Page Report To Focus On Barr’s 4-Page Summary

Below is my column in The Hill newspaper on the hearing with Attorney General Bill Barr in the Special Counsel investigation. Barr’s testimony reaffirmed many of the points of the column, including the fact that Robert Mueller was not told that he could not reach a conclusion of obstruction. Indeed, Barr testified that both he and Deputy Attorney General Rod Rosenstein told Mueller that he should reach a conclusion. As Mueller’s superiors, that should have resolved any question of a “policy” of Main Justice. However, according to Barr, Mueller not only did not reach a conclusion but he also disregarded the express request that his staff identify grand jury information to allow for a rapid release of a redacted report.

Notably, Barr also confirmed that just eight percent of the public report was redacted — largely to remove material that could undermine ongoing investigations. The sealed version of the report given to Congress only had two percent redacted. Thus, while the Democratic leadership is insisting holding back impeachment efforts until they can get “the full report,” they already have 98 percent of the report and the remaining grand jury information might ultimately not be released by a federal court. Nevertheless, as predicted in the column, the focus of Congress remains on the four-page summary that preceded the full 408-page report. It is a telling emphasis that highlights what I have previously discussed as the priority of congressional leaders.

Here is the column:

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