Category: Courts

Congress, Courts, Politics

“Errand Boy”: Retired Judge Resigns From Supreme Court Bar In Blistering Letter To Chief Justice Roberts

There has been considerable coverage of a letter from retired Hawaiian judge James Dannenberg who resigned from the Supreme Court Bar in protest over what he views as a court become little more than an “’errand boy’ for an administration that has little respect for the rule of law.” While I appreciate Dannenberg’s deep-seated and good-faith concerns over the direction of the Court’s jurisprudence, this letter is wildly off base. Indeed, the letter appears to denounce the Court for being “results-oriented” because it does not reach the results that he prefers. While the conservative justices as chastised for voting in bloc, he has no such qualms about the liberal justices voting as a bloc in the same cases. One is viewed as ideological while the other is viewed as . . . well . . . right.

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

Why Calls For A “National Quarantine” May Be More Rhetorical Than Legal

Below is my column in the Hill on how the calls for a “national quarantine” ignore both the historical and legal foundations for such orders. While the President can reduce travel at transportation hubs and certainly call for a national quarantine as “an aspirational” matter, the legal authority to enforce a national quarantine is far from obvious.

Here is the column:

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Constitutional Law, Courts, Politics, Society

If every citizen had N95 Masks, Would Government Be Justified in Locking Down The Population Next Time?

By Darren Smith, Weekend contributor

I have to wonder if our state government’s lockdown of the population, curtailment of civil liberties, destruction of job opportunities, and denial of basic medical, education, and cultural needs would have been necessary and legally justified had each of us been equipped with our own supply of masks.

At the beginning of the self-declared State of Emergency, Washington Governor Jay Inslee declared, among many other restrictions, that access to basic medical services, such as routine doctor visits, dental procedures, diagnostic services were to be prohibited, ostensibly on the fact that masks should be diverted from these services and conserved to supply hospitals and critical care centers that were lacking in preparedness and woefully out of stock. He further reiterated that because the public will spread corona virus, we were ordered to self-quaranteen, resulting in tens of thousands of job losses, an upset in daily life and the general loss of liberty.

Before the next virus crises hits, I propose we adopt a new symbol of American Freedom and Liberty–The N95 Mask–and shield ourselves from the next outbreak of panic legislation and overreach by executive and administrative power

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Columns, Congress, Constitutional Law, Courts, Justice, Lawyering

Virtual Democracy: Congress and The Supreme Court Need To Move Into The Virtual Space

Below is my column in The Hill newspaper on the baffling reluctance of Congress and the Supreme Court to allow for remote or distance technology as an alternative to physical sessions. Democracy at a distance is better than no democracy at all in times of emergency. President Donald Trump was asked about Congress allowing remote voting given the various Senators who are now in quarantine. He thought that it was a good idea but that there may be constitutional barriers. The greatest barriers, particularly for the Supreme Court, remain cultural not constitutional.

Here is the column:

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

MSNBC Legal Analyst: Trump Must Be Investigated For Negligent Homicide And Manslaughter
YouTube Screenshot/MSNBC

We recently discussed how an American University professor called for the impeachment of President Donald Trump over his handling of the coronavirus outbreak. Not to be outdone, MSNBC legal analyst Glenn Kirschner is now declaring that Trump should be charged with negligent homicide over his conduct. While insisting that, as a former prosecutor, this is something he “actually know[s] too much about,” Kirschner proceeds to utterly misrepresent the controlling law and definitions of such a criminal case. While I come from the other perspective of a criminal defense attorney, the argument being put forward by the MSNBC legal analyst is devoid of any basis in the law. It does however play well for those who believe impeachment or prosecution are entirely fluid and relative concepts when it comes to Trump.

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Courts, Criminal law, Justice, Lawyering, Media, Politics

Free The Trolls: The Justice Department Moves To Drop Major Mueller Case Against Russian-Linked Companies

It appears that trolls are enjoying St. Patrick’s Day as much as Leprechauns. The Justice Department shocked many by dropping the matinee case of former Special Counsel Robert Mueller against two Russian companies accused of funding the “troll farms” in the 2016 election. Many critics have charged that the trolling operation was laughingly ineffective and clumsy. Moreover, the evidence against the companies, including Concord Management and Consulting LLC and Concord Catering, was questioned. The prosecutors, while defending the original charges, moved to dismiss the case because they viewed the trial as threatening national security secrets. That claim seemed like more of a spin in a case that never seemed to materialize into hard evidence to support these charges. Update: The company has announced that it will sue the U.S. government for billions in damages — a move that will once again raise this same information for trial.

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Columns, Courts, Lawyering, Media, Politics, Society, Supreme Court

The Death of Irony: How A Judge’s Attack On Judicial Bias Backfired

Below is my column in the Hill newspaper on the recent criticism of the Roberts Court by a federal district judge. The law review article makes a stronger case for critics who view some judges are part of a deep bench movement against Trump. I do not see that pattern but I do view Judge Lynn Adelman as well outside of the navigational beacons for public commentary by federal judges.

Here is the column:

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Constitutional Law, Courts, Criminal law

Court Finally Releases Chelsea Manning After Suicide Attempt

I have previously objected to how the Justice Department uses grand juries to punish certain individuals who refuse to cooperate with federal investigations. This concern was heightened during my representation of Dr. Sami Al-Arian who signed a plea bargain with the understanding that, after serving his time, he would be allowed to leave the country. Instead, he was forced before a grand jury and remained in jail for years as a matter of contempt. The Justice Department often prolongs the incarceration while piling on fines to ruin individuals who refuse to cooperate. That was the case with Chelsea Manning. Like Al-Arian, she had already served time for her role in the Wikileaks controversy but the remainder of her sentence was commuted by President Barack Obama. The Justice Department proceeded to pull her before another grand jury where she refused to testify (like Al-Arian). After a long incarceration and an equally excessive 256,000 in fines, she finally tried to kill herself this week by hanging in the Alexandria jail. Only then did U.S. District Judge Anthony Trenga finally order her release.

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

The Road Rage Defense: How The Media Has Ignored A Pattern Of Democratic Attacks On The Judiciary

Below is my column in The Hill newspaper on the recent threat from Sen. Chuck Schumer directed at two members of the Supreme Court. The column explores how this attack was neither isolated nor unique. Despite any substantive coverage in the media, Democratic politicians are increasingly attacking the Court and the judicial system. I have joined in the criticism of President Donald Trump over his verbal assaults on judges, Yet, there is the paucity of attention given to the same types of attacks coming from Democrats.

Here is the column:

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Constitutional Law, Courts, Free Speech, Media, Politics

A Less Than Noble Moment: Trump Campaign Sues CNN For Defamation

President Trump’s re-election campaign filed a defamation action in Georgia against CNN on Friday for publishing an opinion piece by Larry Noble, a CNN contributor and former general counsel for the Federal Election Commission. Based largely on an opinion piece by a well-known Trump critic, the lawsuit is weak and unlikely to succeed. The complaint offers more heat than light as a defamation action.

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Courts, Criminal law, Justice, Lawyering

FBI Agents Connected To Carter Page Surveillance Barred From FISA Process

In a further demonstration of the abuses that led to the surveillance of Trump officials, the Foreign Intelligence Surveillance Act (FISA) court has barred FBI officials involved in the wiretapping of former Trump campaign adviser Carter Page from appearing before the court. in rebuke that exceeded the remedial recommendations made by the independent monitor recently appointed by the court. Notably, this goes beyond the recommendations for David Kris, the highly controversial choice as an independent monitor of reforms. The order of Judge Boasberg further belies arguments that the surveillance of the Trump-relate figures was well-based and justified, as I discussed in any earlier column.

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Congress, Constitutional Law, Courts, Politics, Supreme Court

Roberts Rebukes Schumer For Threatening Justices With Retaliation Over Rulings

In an extraordinary attack on the independence of the judiciary, Senate Minority Leader Sen. Chuck Schumer threatened  Associate Justices Neil Gorsuch and Brett Kavanaugh with retaliation if they voted against abortion rights this term. As I discussed in my column yesterday, the Court heard oral arguments today in June Medical Services v. Russo. Schumer joined protests on the steps of the Court to warn the justices that they “will pay the price” if they vote against abortion rights. Chief Justice John Roberts issued a rare public rebuke (as he did earlier with President Trump) to defend the integrity of the judiciary. He was right to do so. Schumer sounded more like a stalker than a statesmen in his threats of future retaliation.

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Courts, Criminal law, Media, Politics

Court: Clinton Must Testify On Email Scandal

In a remarkable turnaround, Hillary Clinton will have to testify after all on the email scandal. Clinton has never been subject to true examination on the issue under oath. Instead, she was allowed to meet with investigators shortly before being cleared during the Obama Administration. D.C. District Court Judge Royce C. Lamberth ruled that her prior answers were insufficient and cursory. One interesting twist is that she will not be able claim the privilege against self-incrimination on the original alleged offenses since the statute of limitations has passed. While she would have been unlikely to do so, she would have evoked on a crime that could be prosecuted. Ironically, it will be the Trump Administration that will have to defend her in opposing such demands since they are handling the litigation as it relates to her prior public service as Secretary of State.

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Constitutional Law, Courts, Politics

Roberts Redux? Supreme Court Takes Obamacare Appeal

The Supreme Court decided Monday to hear the appeal of various states seeking to reverse a lower court ruling that the individual mandate provision of the Affordable Care Act is unconstitutional. As with the abortion case to be heard this week, the case will put Chief Justice John Roberts at a critical crossroads as the new swing vote on the Court. However, the Obamacare decision (as I discussed earlier in a column) is a bill coming due for Roberts on his reasoning in the first Obamacare decision.

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Columns, Congress, Constitutional Law, Courts, Politics

Congress Hits Rock Bottom With Ruling In McGahn Case

Below is my column on the catastrophic loss of Congress in the recent decision in favor of the Trump Administration over the testimony of former White House Counsel Don McGahn. This loss is breathtaking for the House of Representatives. I was lead counsel in the litigation over Obamacare and, as part of that victory, we succeeded in getting the district court to recognize the standing of the House of Representatives. This latest decision lays waste to that precedent and eviscerates the ability of the House to enforce its subpoenas.

As I discussed earlier, some have repeated the view of the House managers that the White House was arguing conflicting positions in court and in Congress: arguing that the court cannot enforce subpoenas while telling the House that it should have subpoenaed witnesses. The criticism is superficial. This was one of a number of constitutional claims that the White House wanted to raise with the courts. It would define the lines of separation of all three branches. By seeking judicial review on the ability of Congress to compel such appearances, the Administration was seeking clarity on the relative positions of the Executive and Legislative branches in such disputes. I do not blame the House leadership or the House General Counsel in bringing this action. This was a good case and a bad decision. It must be appealed. Since this is the D.C. Circuit, it is already impacted most cases involving the Congress so an additional adverse decision by the Supreme Court will only make it marginally worse. That is the point of hitting rock bottom.

The decision also shows why there are a variety of contentious constitutional issues that warrant judicial review. It further undermines the basis for Article II of the impeachment.

Here is the column:

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