Below is my column in USA Today on the lack of a strategy by the House to secure conviction in the trial of former President Donald Trump. As I have previously noted, the House managers did an excellent job in their presentations and many of the videotapes rekindled the anger that most of us felt over the riot. They also reinforced the view of many (including myself) that former president Donald Trump bears responsibility in the tragedy that unfolded due to his reckless rhetoric. Yet, there was a glaring omission in the substance of the House arguments. The managers did not lay out what the standard should be in convicting a former president for incitement of an insurrection and only briefly touched on proving any “state of mind” needed for such a conviction. That is why I have referred to their case as more emotive than probative. It lacked direct evidence to support the claim that Trump wanted to incite an actual insurrection or rebellion against the United States, as alleged in the article of impeachment. I do not believe that an acquittal was inevitable in this case, but it was all but assured by critical decisions made by the House in this impeachment. The unforced errors discussed below raise the question of whether the Democrats “tanked” the trial.
During the Trump Administration, Democratic Attorneys General used the Administrative Procedure Act (APA) to delay Trump policies pending satisfaction of requirements for notice and comment periods. Even though President Barack Obama did not satisfy APA conditions in imposing original rules, the Supreme Court enforced such procedures to reverse prior orders. During that litigation over the Trump executive orders, I repeatedly noted that the Democratic challengers in court were making arguments that would likely used against the next Democratic president in seeking to quickly undo Trump’s orders. That has now come to past. When Biden took power, he immediately did what Trump did in taking unilateral acton without APA notice. District Court Judge Drew B. Tipton ordered this week that the directive from acting Homeland Security Secretary David Pekoske was not in apparent compliance with the same law.
Below is my column in the Hill on today’s challenge to the counting of electoral votes in Congress. The challenge raises a long-standing debate over the authority of Congress in making such challenges. What is clear in my view is that Vice President Michael Pence does not have the unilateral authority claimed by President Donald Trump to simply “send back” electoral votes for particular states. Nothing in the Constitution suggests such authority and the Electoral Count Act expressly contradicts such claimed authority. Indeed, such an act could bring an unprecedented challenge and judicial intervention in the certification of the presidential election.
President Donald Trump has been criticized by Democrats and Republicans alike for his recent spate of pardons, including corrupt ex-congressmen and the father of Jared Kushner. I was one of those who immediately criticized those pardons as manifestly unjustified and inimical to our legal system. However, none of that makes the comments of senior U.S. District Judge Robert Pratt of the Southern District of Iowa any less troubling. Judge Pratt gave an interview slamming the pardons in a departure from judicial ethics rules barring jurists from engaging in such political commentary.
Below is my column in the Hill on the conclusion of the case of Gen. Michael Flynn, which ended (not surprisingly) with one last gratuitous and controversial act from the court. Judge Emmet Sullivan decided to effectively flog Flynn on his way out of his court.
The Trump campaign finally succeeded in one of its challenges yesterday to the extent that it was granted a court order for access and a forensic investigation of roughly two dozen Dominion voting machines. The machines are located in rural Antrim County where roughly 6000 votes were initially assigned to President-elect Joe Biden but then corrected and tabulated in favor of President Donald Trump. Four weeks ago, we discussed this controversy and the concern that such acknowledged human error could occur in other districts. The order from Judge Kevin Elsenheimer, however, concerns not the presidential election but a recounting of ballots in a village marijuana proposal.
The long-awaited argument in Trump v. New York revealed a Court that seemed eager for an off-ramp rather than a merits ruling in the census dispute. Justices seemed skeptical of the Trump Administration’s interpretation of “persons” to exclude undocumented individuals while they also expressed skepticism that the Court needed to intervene at this stage. Notably, one of those expressing skepticism over the exclusionary interpretation was Associate Justice Amy Coney Barrett. I have previously stated that I believe the Administration’s interpretation is at odds with the long-standing meaning of “persons” under the Constitution as including all individuals residing in the United States regardless of their status. Some of the justices balked at micromanaging communications between a president and a federal agency in prohibiting certain information from being transmitted. One thing however stood out in the argument: the use of the term “illegal alien” by various justices, including Justice Sonia Sotomayor. The term has been denounced in some states and various universities as a “microaggression.” Continue reading “The Census Case: Did The Court Reject Micromanagement But Embrace Microaggression?”→
The U.S. Supreme Court delivered a surprising blow to pandemic restrictions on house of worship in a late night order barring the enforcement of New York Gov. Andrew Cuomo’s Oct. 6 “Cluster Initiative” limiting attendance at religious services. Five justices (including newly installed Justice Amy Coney Barrett) blocked the limits while allowing the United States Court of Appeals for the Second Circuit to hear the merits in the case. Notably, Chief Justice John Roberts voted with the liberal justices but only because he felt that the order was not needed since the plaintiffs were not currently subject to the most severe limits. Continue reading “The Supreme Court Bars Cuomo’s Pandemic Limits On Houses of Worship”→
The Third Circuit has issued an opinion that has received little attention over the right to bear arms, but it should. The decision in Folajtar v. The Attorney General of the United States may be one of the most perfectly tailored case for major Supreme Court decision. Indeed, the only thing lacking from the 2-1 decision is a mailing label directly to Justice Amy Coney Barrett. In ruling that a non-violent tax conviction can result in the denial of gun ownership, the panel presents a clean case to further define the contours of the individual rights recognized in District of Columbia v. Heller, 554 U.S. 570 (2008). It is also an opportunity that any new justice would relish: after being the lone dissenter on a similar case, Barrett could be the critical vote (and even the author) on the opinion changing the area in line with her prior position.
On Saturday, U.S. District Court Judge Matthew Brann dismissed the challenge filed by the Trump campaign to stop the certification of the vote in Pennsylvania. The court acknowledged that vote negation may have occurred due to different “curing” rules, but balked at the legal and logical basis for blocking certification of the state electoral votes to remedy to such claims. The scathing order described the argument of Trump counsel Rudy Giuliani as a “Frankenstein monster” composed of disparate parts of different legal claims. Notably, the court did find that the “Individual Plaintiffs have adequately pled that their votes were denied.” However, that island of support is lost in a vast ocean of countervailing and caustic findings by the court.Continue reading “Uncured: Federal Judge Dismisses Trump Challenge In Pennsylvania”→
There is more rage than reason being expressed in the country over election challenges, but there are some interesting legal issues. One is found in Pennsylvania where the Trump campaign is alleging that counties used different approaches to “curing” ballots. The issue brings back memories of Bush v. Gore, 531 U.S. 98 (2000), under equal protection. Notably, while academics have uniformly dismissed this claim, they largely refer not to the claim but to the relief. The fact is that there does not seem a sufficient number of votes that could change the outcome of the election. The question however is whether there is still a colorable claim of an equal protection violation. This could come down to the two distinct parts of Bush v. Gore.