Today will be the long-awaited release of the Special Counsel report. (I will be in New York doing analysis for CBS and BBC). District Court Judge Reggie Walton however did not wait for the release of the report or the press conference planned by Attorney General Bill Barr for the morning. Walton made a surprising statement in court on Tuesday criticizing Barr. Walton objected that “The attorney general has created an environment that has caused a significant part of the public … to be concerned about whether or not there is full transparency.” Walton did not explain what precisely Barr did to create such public doubts, but the comments appeared immaterial to the merits. A few days ago, we discussed another federal judge attacking President Trump at an awards ceremony. Walton’s comments are not nearly so problematic but they were unfortunate and untimely in my view.
As we await the release of the Special Counsel report, there are some curious standards being suggested for the release of grand jury information. Various media organizations have featured experts insisting that Barr could release such information called Rule 6(e) information. That is news for me. I was counsel in one of the largest Rule 6(e) cases, the Rocky Flats Grand Jury case, years ago in Denver. Yet, the Nation has posted an explanation by Columbia University Law Professor Jeffrey Fagan that the rules for such disclosure are “elastic” and Barr could be “creative” in making releases. In my view, that is in direct contradiction with not just long-standing but recent precedent. There should not be just a wildly different account by legal experts on such a question so I would like to explain why such views are misplaced.
Below is my column in USA Today on the Julian Assange arrest. We are still learning more about Assange’s confinement, including bizarre accounts of Assange’s conduct in the Ecaudorian Embassy in London. The key question will be the highly generalized allegation in the single count indictment from the Justice Department that Assange played an active role in the hacking. That would cross the Rubicon for journalists and make this an even more difficult case for those worried about free speech and the free press. Yet, the indictment is strikingly silent on details or an assertion that Assange actually used the password. We will likely learn more as the May hearing approaches for his extradition.
Below is my column in the Hill newspaper on the rising attacks against Attorney General Bill Barr even before the redacted report has been released. Many in the media has notably omitted critical facts like Deputy Attorney General Rod Rosenstein helped write the summary and also concluded that there was not case for criminal obstruction to be made against President Trump. There may be grounds to criticize Barr for his redactions, but critics omit the fact that Robert Mueller’s office is assisting in those redactions. I have a long relationship with Barr and testified in favor of his confirmation. However, I will not hesitate to criticize his actions when it is warranted. For example, I do not approve of the Justice Department refusing to defend the Affordable Care Act — disregarding the function of the Department to defend duly passed laws. Yet, Barr’s conduct with regard to the report and thus far been open and consistent with what he said in this confirmation hearing.
There is a controversy out of the University of Virginia where federal Judge Carlton Reeves gave a scathing speech against President Donald Trump — likening his conduct to that of the Kl Klux Klan and segregationists from the Jim Crow period. The speech (accepting an award) raising troubling issues about Reeves engaging in political speech in violation of core judicial ethical rules.
Below is my column in the Los Angeles Times on the calls by various Democrats to “pack” the Supreme Court to break the conservative majority. Like the FDR scheme, it is a case of doing the right thing for the wrong reason and in the wrong way. As a longtime advocate of expansion (here and here and here and here), the column advocates an alternative approach — not to pack but to unpack the Court. While my approach has been criticized by justices who oppose any expansion, it would address some of the most dysfunctional aspects of the Court.
I have the honor of speaking on a distinguished panel at the American Bar Association’s 33rd Annual National Institute on White Collar Crime in New Orleans. The panel is the final event for the conference entitled “Ethical Challenges Raised by the Conduct of Prosecutors, Defense Counsel, and Legal Commentators During High Profile Cases.” The panel will start on Friday from 9:45 – 11:45 at the Hilton Riverside.
Comal County Judge Jack Robison has caused a considerable controversy in Texas after he told a jury to go back after it reached a guilty verdict in a sex trafficking case because God told him the defendant was innocent. There have been long debates over what a court can use as a matter of “judicial notice” but divine intervention is not one of them.
Below is my column for the BBC on the controversy over President Donald Trump’s national emergency declaration. Sixteen states, led by California’s Attorney General, are now suing. Others lawsuits have been filed on behalf of landowners and others. The lawsuits appear to challenge both the basis for an emergency declaration and the funding. I still expect Trump to prevail in the long-run if this goes to the Supreme Court. Ironically, House Intelligence Chair Adam Schiff said this weekend that this controversy would be the “test” of his colleagues integrity and principles. Yet, Republicans could easily point out that Schiff never objected or took action when President Barack Obama circumvented Congress, including ordering the payment of potentially billions out of the Treasury after Congress refused to fund part of the Affordable Care Act. He was also silent when Obama not only refused to get authorization for the Libyan War but used undedicated funds to pay for it without an appropriation from Congress.
As this column discusses, there was at one time a much easier way to resolve the most bitter differences among political figures.
Below is my column in the Hill newspaper on a growing mythology building around the nomination of Bill Barr for Attorney General of the United States. One of the most prominent is that Barr was intentionally evasive about releasing any report from Special Counsel Robert Mueller. Members of both parties have overwhelmingly called for the release of the report. However, Democratic members pushed Barr to promise to release the entire report before he actually reads it.
Barr said repeatedly that he believed that not only the completion of the Special Counsel investigation but the release of the information was in the public interest. Barr was repeating the standard from the regulation, which is precisely what he should do. That standard says that the Attorney General has discretion to conclude that “these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.” What the Democratic senators were demanding would have been an unethical pledge to release a report without knowing its contents. Federal law prevents the disclosure of a myriad of different types of material from Grand jury (or Rule 6(e)) material to classified material to material covered in privacy or confidentiality laws as well as possible privileged material. After pushing him on whether he would act ethically, it was a curious request for a facially unethical and unprofessional pledge. Here is what Barr said:
“I also believe it is very important that the public and Congress be informed of the results of the special counsel’s work . . .For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political or other improper interests influence my decision.”
This morning I will be testifying before the Senate Judiciary Committee in the confirmation hearing for William Barr for United States Attorney General. The hearing will start at 9:30 a.m. in Room 216 in the Hart Senate Office Building.
It is called In re Grand Jury Subpoena No. 18-3071 and it just might be the first ruling on an issue in the investigation of Special Counsel Robert Mueller by the Supreme Court. The U.S. Court of Appeals for the D.C. Circuit recently ruled on the matter under seal involving a corporation presumably owned by a foreign government. The corporation lost in its bid to quash the subpoena under the protections of the Foreign Sovereign Immunities Act. The D.C. Circuit imposed a daily fine, which was enjoined by Chief Justice John Roberts on Sunday night. While not a ruling on the merit, it could be a historical moment as the first Mueller matter to make it to the Court.
Below is a column on the Flynn’s sentencing hearing and the curious turn of events in the case. He is now scheduled for a new sentencing hearing in March 2019. Interestingly, while I have repeatedly stated in print and television that Flynn does not deserve sympathy, I have been widely quoted as saying that I have called for such sympathy. My point is simply that there are serious concerns raised by how this interview was handled, including the intentional effort to have Flynn interviewed without counsel. Moreover, it is possible to denounce such false statements without exaggerating the specific crime itself. It is still unclear why Flynn lied when the conversation of such sanctions was not strange or improper. Indeed, the Administration publicly was saying that it wanted a new start with Russia and would reexamine all aspects of the relationship. The hearing however quickly went off the rails. I have a great deal of respect for Judge Emmet Sullivan and have appeared before him on countless occasions. But this hearing took a radical departure from the record and the specific crime being addressed in sentencing.