Category: Courts

Congress, Constitutional Law, Courts, Criminal law, Free Speech, Lawyering, Politics, Torts

Two Capitol Police Officers Sue Trump Over Capitol Riot

I recently wrote about the lawsuit by Rep. Eric Swalwell against former President Donald Trump as a serious miscalculation that could result in a legal vindication for Trump either on the trial or appellate levels. In my view, the lawsuit contravenes free speech as well as controlling case law from the Supreme Court. Now two Capitol Police officers injured during the riot, James Blassingame and Sidney Hemby, have sued on similar grounds with many of the same inherent flaws. The 40-page lawsuit was written by D.C. attorney Patrick Malone, who previously filed ethics complaints against lawyers representing the Trump campaign or the Republican party.  Trump lawyers may view this lawsuit as a greater opportunity than a liability for their client.

Continue reading “Two Capitol Police Officers Sue Trump Over Capitol Riot” →

Constitutional Law, Courts, Free Speech

North Carolina Supreme Court Upholds Judicially Mandated Speech And Censorship On Blog
An opinion out of North Carolina is raising very serious concern over free speech this week.  The North Carolina Court of Appeals upheld the actions of William Coward, a Macon County judge, who not only convicted a blogger of the crime of recording a court hearing, but went further to force  Davin Eldridge to write and post a lengthy essay about respect — and then delete any negative comments from those objecting to the judicially-coerced speech.  The opinion in my view is an outrageous overreach of judicial authority and an attack on free speech. Yet the North Carolina Supreme Court has now upheld the sentence without any opinion.
Academia, Constitutional Law, Courts, Free Speech

Near Unanimous Supreme Court Rules Against Georgia Gwinnett College In Free Speech Victory

If Georgia Gwinnett College wanted to foster greater unity in its use of “free speech zones,” it succeeded in prompting a near unanimous Supreme Court in ruling against it in favor of free speech this week. The Court voted 8-1 that two former students should be able to sue for nominal or symbolic damages to avoid mootness on their challenges.  Only Chief Justice John Roberts stood against the ability of the two former students to sue over the loss of free speech rights. Continue reading “Near Unanimous Supreme Court Rules Against Georgia Gwinnett College In Free Speech Victory” →

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

Did The Democrats “Tank” The Second Trump Trial?

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.

Here is the column:

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Academia, Columns, Congress, Constitutional Law, Courts, Criminal law, Free Speech

“The First Amendment Does Not Apply”: A Response To The Letter Of Scholars In Rejecting Trump Arguments Under The First Amendment

“The First Amendment does not apply in impeachment proceedings.”  If there is a single line that sums up the sense of legal impunity in the second Trump impeachment, it is that line from a letter sent by law professors to deny any basis for the former president to challenge his impeachment on free speech grounds. The scholars call any such arguments “legally frivolous” but only after misstating the argument and frankly employing a degree of circular logic. While I agree with aspects of the letter, I believe that the thrust of the letter misses the point of those of us who have raised free speech concerns.  Continue reading ““The First Amendment Does Not Apply”: A Response To The Letter Of Scholars In Rejecting Trump Arguments Under The First Amendment” →

Courts, Politics

Federal Court Blocks Biden Executive Order On Deportations Under the Same Law Used Against Trump

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.

Continue reading “Federal Court Blocks Biden Executive Order On Deportations Under the Same Law Used Against Trump” →

Columns, Congress, Constitutional Law, Courts, Politics, Society

We Must Talk About Constitutional Issues In The Election Certification

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.

What is odd is the President’s continued assurance to his supporters that this is a possible path to victory. Shortly after the election, I wrote that I thought the President was laying the foundations for a “Death Star” strategy but that it would not likely succeed. To make that Luke Skywalker shot, he needed a perfect alignment of elements. None of those elements are present today.  The over-hearted rhetoric from the President and his critics however are magnifying our divisions and anger.

Here is the column:

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Courts, Lawyering, Society, Uncategorized

“Symbols . . . Of Subtle Oppression”: Virginia Judge Orders Removal Of Portraits Of White Judges

Judge David Bernhard is a jurist in Fairfax County (where I reside) has issued a controversial order that the portraits of white judges must be removed from a courtroom because their presence would deny a black defendant a fair trial. In a decision applauded in the Washington Post, Bernhard declared that a fair trial is threatened in “a courtroom gilded with … white individuals peering down on an African American defendant.”  Continue reading ““Symbols . . . Of Subtle Oppression”: Virginia Judge Orders Removal Of Portraits Of White Judges” →

Courts, Lawyering, Politics

No Recusal But Now A Reversal? Federal Judge and Sister Of Leslie Abrams Changes Order On Georgia Ballots

U.S. District Judge Leslie Abrams Gardner attracted considerable criticism when she declined to recuse herself from a challenge over voter eligibility.  Gardner is the sister of Stacey Abrams who has led the effort to register voters in the state. Many felt it was inappropriate for Gardner to rule on the case, a concern that was magnified by her quick rejection of a purging of the rolls of roughly 4000 inactive voters.  Now, it appears that Gardner has not recused herself but did reverse herself.  A new order has issued upholding the purge in the face of an appeal.

Continue reading “No Recusal But Now A Reversal? Federal Judge and Sister Of Leslie Abrams Changes Order On Georgia Ballots” →

Courts, Criminal law, Lawyering, Media, Politics

“A Criminal Like Trump”: Federal Judge Tosses Aside Judicial Restraint In Public Interview

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.

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Columns, Constitutional Law, Courts, Criminal law, Justice, Lawyering, Media, Politics

Flynn’s Cadaver Synod: The Court Dismisses A Dead Case But Not Before It Flogs The Corpse

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.

Here is the column: Continue reading “Flynn’s Cadaver Synod: The Court Dismisses A Dead Case But Not Before It Flogs The Corpse” →

Courts, Lawyering, Politics

Will Pot Save The President? Michigan Judge Orders Forensic Investigation of Roughly Two Dozen Dominion Voting Machines

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.

Continue reading “Will Pot Save The President? Michigan Judge Orders Forensic Investigation of Roughly Two Dozen Dominion Voting Machines” →

Courts, Society

Fifth Circuit Rules In Favor Of Use Of Military Funds For Border Wall

In a victory for the Trump Administration, the United States Court of Appeals for the Fifth Circuit reversed a lower court which ruled that the Trump Administration could not use $3.6 billion from military construction funds for a construction of new border wall. It was a mixed week for the White House. The ruling comes as another judge ordered the reinstatement of the DACA program. Continue reading “Fifth Circuit Rules In Favor Of Use Of Military Funds For Border Wall” →

Academia, Courts, Politics, Supreme Court

The Census Case: Did The Court Reject Micromanagement But Embrace Microaggression?

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?” →