The Curious Case of The Andrew McCabe Legal Defense Fund

Below is my column in the Hill newspaper on the curious timing of a legal defense fund for Andrew McCabe — started and closed before the release of a report on his conduct.  With the sentencing of the first Mueller defendant, Dutch lawyer Alex van der Zwaan, there are obvious questions of why people like Flynn and van der Zwaan should face prison for single false statements while McCabe is accused of lying four times, including twice under oath.  Mueller’s office insisted that anyone who lies to investigators deserves to be sentenced and punished, but that standard appears to change be somewhat fluid when a former high-ranking FBI official is implicated.  Nevertheless, I can certainly understand McCabe’s interest in a legal defense fund given the ongoing IG investigation and addition of a prosecutor to the team.  However, the money was raised before donors could know the full account of the allegations against McCabe. Moreover, McCabe can use this money for any legal needs as he enters private life.

Here is the column:

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The Proposed Mueller Protections Would Achieve Little While Risking Much For Congress

800px-Capitol_Building_Full_ViewBelow is my column in the Hill newspaper on the push for new legislation to Robert Mueller.  I supported the appointment of a Special Counsel and still believe that Mueller must be allowed to complete his work. However, this legislation would do little in terms of real protection while putting at risk a major piece of precedent from the Supreme Court.

Here is the column:

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Sessions Moves To End The Spin Cycle: The Independent Investigation of FBI Allegations Is Long Overdue

jeff_sessions_official_portraitBelow is my column in The Hill newspaper on why a separate and independent investigation of the FBI’s conduct is warranted.  My support for the investigation is not because I believe that criminal charges will likely be brought. Rather, I have never seen our country more divided and I cannot imagine any way for us to get beyond this poisonous political environment without full and complete investigations with public disclosure of the findings.  As I have stated in interviews, I comment Attorney General Jeff Sessions in not only giving this matter to the Inspector General but ordered U.S. Attorney John Huber to assist in the investigation.  The combination of the U.S. Attorney and the Inspector General is likely to expedite the investigation and maximize the options for the Justice Department — including the option reserved by Sessions to eventually order the appointment of a Special Counsel.  Critics of Sessions are missing the import of the joint investigation.  He has selected a line prosecutor from outside of the Beltway to review the conduct of FBI officials, including James Comey and Andrew McCabe. Huber adds prosecutorial experience and powers to the ongoing IG investigation.

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Federal Court Permits Emoluments Challenge To Move Forward

1600_executive_branchA federal judge issued a surprising decision that allowed part of an emoluments challenge to proceed toward trial.  The opinion has been widely misreported, but still represents a rare win for those arguing that President Donald Trump is accepting prohibited payments from foreign governments at the various Trump properties.  However, the decision is only on the threshold standing question and did not address the merits of the constitutional claim.  Moreover, United States District Judge Peter Messitte dramatically narrowed the action to only claims related to the Trump Hotel in Washington, D.C.  These is considerable debate over the meaning of the Constitution’s “emoluments” clause.  There are clearly good-faith arguments that such payments fall within the meaning of the language, but I remain highly skeptical.  Even with the much reduced action, I think Messitte is wrong and that the action should have been dismissed in its entirety.  Previous actions have been dismissed.

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Bad Cases (and Bad Lawyers) Can Make For Bad Law

Below is my column in USA Today on the recent ruling against President Donald Trump in a civil lawsuit where his counsel sought dismissal on constitutional grounds.  It was a weak argument that made bad precedent for the Office of the President.  With yet another change in his legal team, Trump needs to focus on continuity among his legal team.  More lawyers does not necessarily translate to a stronger case. Indeed, it can undermine a case when lawyers are advancing conflicting or reckless arguments.

Here is the column:

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“I’m A F***king Judge”: New Jersey Judge Found Passed Out On Side Of Road and Later Found To Be Legally Drunk . . . But Charges Thrown Out

gavel2Municipal Judge Wilfredo Benitez is at the center of a controversy after he reportedly shouted profanities and cited his judicial position after being found passed out by the side of a road.  Benitez was later found to be intoxicated.  However, his charges were later thrown out by another judge.

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THE EXQUISITE CORPSE: HOW ANDREW MCCABE IS NOW PART OF THE BODY POLITIC

McCabeAt the turn of the last century, surrealists had a parlor game in Paris called “The Exquisite Corpse” where writers would create collective stories by writing lines without knowing what preceded them. The lines were often nonsensical like the line that gave the game its name: “Le cadavre exquis boira le vin nouveau. ” (“The exquisite corpse shall drink the new wine.”) With minutes of his firing, former FBI Deputy Director Andrew McCabe became such an exquisite corpse with various politicians adding lines to his story that seemed entirely disconnected to his story. Former FBI Director James Comey used McCabe to pitch his upcoming book while former Attorney General Eric Holder used him to effectively attack career staff at his former agency. The point of the game in both politics and literature is not to advance a coherent narrative but insert your own lines into a collective story.

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