Category: Courts

A Kid Named Kiki: The Extraordinary Life and Legacy Of Ruth Bader Ginsburg

Below is my column in The Hill newspaper on the death of Associate Justice Ruth Bader Ginsburg. We expect the nomination of her replacement this week and what could be the most heated confirmation process in history.  We may look back at Bork and Kavanaugh as examples of bipartisan tranquility by comparison. As Washington returns to its favorite blood sport, many will continue to mourn the loss of an extraordinary jurist.

Here is the column:

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Justice Ruth Bader Ginsburg Dies At 87

Last night, many of us were discussing the terrible loss of one of the greatest icons in American law: Ruth Bader Ginsburg. In the coming days, there will be much debated about the timing and the merits of any replacement on the Court. However, the trauma of this moment for millions is the fact that we know that there really is no replacement for this inspirational and brilliant jurist.  My column on Ginsburg was posted this morning in The Hill newspaper.

Continue reading “Justice Ruth Bader Ginsburg Dies At 87”

Prominent Indian Lawyer Accuses Supreme Court Of Destroying Democracies . . . Supreme Court Threatens Imprisonment

downloadWe have previously discussed courts in the United States seeking to punish lawyers for making critical comments about judges or legal commissions on social media. We have also followed such actions taken against lawyers in other countries like Saudi Arabia. As will come as no surprise on a blog emphasizing free speech, I have long been critical of such actions.  However, India is facing a far more serious controversy after the Supreme Court demanded an apology from one of India’s most prominent lawyers for, among other things, blaming the Supreme Court for its role in undermining democracy in India. The justices proceeded to make his point by threatening him with jail unless he offered an unconditional and public apology. Continue reading “Prominent Indian Lawyer Accuses Supreme Court Of Destroying Democracies . . . Supreme Court Threatens Imprisonment”

The Ninth Circuit Strikes Down California’s Ban On High-Capacity Magazines

ninth-circuit-logoThree years ago, I wrote a column questioning the constitutional and practical effect of gun control reforms pushed through after the Las Vegas massacre, including limits on the capacity of magazines. The moves were being oversold in the media as reforms that would make such attacks less likely or deadly while also ignoring the constitutional standard for the review of such measures.  Now, one of those reforms, California’s ban on high-capacity gun magazines, has been struck down by a panel on the United States Court of Appeals for the Ninth Circuit.  Notably, the magazine laws were one of the most promising areas of gun control laws after the Court’s 2008 decisions in District of Columbia v. Heller. Indeed, while I doubted its efficacy, I thought that limits on magazines could potentially pass constitutional muster under Heller with a properly crafted and supported law.

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Turley Testifies In Senate On Antifa and The Anti-Free-Speech Movement in the United States

downloadToday I am testifying in the Senate Judiciary Committee’s Subcommittee on the Constitution on the anti-free-speech movement in the United States.  The hearing is entitled “The Right of the People Peaceably to Assemble: Protecting Speech by Stopping Anarchist Violence.” The hearing will be held at 2:30 in the Dirksen Senate Office Building and will be broadcast on C-Span and available on the Internet through the Committee. My testimony is below.

Continue reading “Turley Testifies In Senate On Antifa and The Anti-Free-Speech Movement in the United States”

Is The Boston Marathon Bomber Ruling Good News For Roger Stone?

download-5We have been discussing the ruling of the United States Court of Appeals for the First Circuit in tossing the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev due to juror bias (as well as reversing some convictions). The ruling is a relatively rare case of a court taking such action.  Criminal defense attorneys, including myself, have long complained that judges talk a good game about fair trials but always seem to find a way of avoiding new trials in the face of even clear juror bias. That was my objection to the Stone trial where Judge Amy Berman Jackson refused to grant a new trial on grounds very similar to those of Tsarnaev, including alleged bias in forepersons in the both cases. While Tsarnaev only got a new sentencing proceeding, Stone should receive an entirely new trial.

Continue reading “Is The Boston Marathon Bomber Ruling Good News For Roger Stone?”

Federal Judge Blocks New Seattle Law Prohibiting Use Of Pepper Spray and Certain Anti-Riot Weapons

James_L._RobartU.S. District Judge James Robart issued an order Friday night that blocked a Seattle law  prohibiting police from using pepper spray and other anti-riot weapons. While described by the court as “very temporary,” it is also very dubious from a constitutional standpoint. I do not see the authority of a federal judge to stop the City of Seattle from determining what gear and devices may be used by its own officers, particularly in response to the federal government objecting to the state policy.  The court in my view does not have the authority to make such a policy decision, even on a “very temporary” basis.  Update: A different federal judge issued a more credible ruling in rejecting the demand of the Oregon Attorney General to put limits on the federal officers.  The Oregon Attorney General’s filing was long on rhetoric and short on the law.

Continue reading “Federal Judge Blocks New Seattle Law Prohibiting Use Of Pepper Spray and Certain Anti-Riot Weapons”

Son of Federal Judge Killed And Husband Wounded In Attack At Home [Updated]

download-2In a murder that has shocked the nation, the son of federal judge Esther Salas was killed and her husband wounded in their home in North Brunswick, New Jersey.  Daniel Anderl, 20, was a student at Catholic University with hopes to go to law school.  His father is a criminal defense attorney. Such attacks on federal judges are thankfully rare and there is much speculation about high-profile cases that Judge Salas has handled or taken on recently, including a lawsuit related to Jeffrey Epstein and another past case involving “The Real Housewives of New Jersey” star Teresa Giudice. While the crime had the markings of premeditation and even professional elements, police are looking into a body found after the shooting as possibly linked. The apparent suicide in another town involved a lawyer who was being contacted reportedly about a connection to the gun recovered near the scene.

Continue reading “Son of Federal Judge Killed And Husband Wounded In Attack At Home [Updated]”

The Case Against Bill Barr: A Response To Professor Turley From Ralph Nader, Lou Fisher, and Bruce Fein

440px-William_BarrI recently received a letter contesting my statements concerning Attorney General Bill Barr in columns (here and here and here and here) and congressional testimony (here and here).  The letter is from Ralph Nader, Lou Fisher, and Bruce Fein. I have known all three signatories for many years and I have the utmost respect for them.  They offer detailed and thoughtful disagreements with my past statements and the record of Attorney General Bill Barr. I asked them if they would allow me to share their arguments with the blog and they have agreed to do so.  As with the prior posting of Professor Morrison, I strongly encourage you to consider the analysis from three of the most influential minds in Washington.

These are figures who require little introduction.  They are well known throughout the world for their contributions to the law and public policy.  Ralph Nader is as legendary figure who has fought his entire life for consumer protection, environmental protection and good government. He has run for president repeatedly (indeed I voted for him) and is widely viewed as one of the most influential figures in the world on public policy.  Lou Fisher spent four decades at the Congressional Research Service and is widely regarded as one of the most influential figures in the shaping of congressional legislation and policies.  He is widely regarded as one of the foremost experts on constitutional and congressional issues.  Bruce Fein was a high ranking Justice Department figure in the Reagan Administration and has been one of the most influential conservative voices in print and television for decades. He is known for his independent and principled analysis of legal and constitutional issues.

As I stated in Attorney General Barr’s confirmation, he comes to this position with long-established and robust views of executive privilege and powers.  While I have long disagreed with him on many of these issues, I view many of the current controversies to reflect policy and interpretative differences, not ethical or criminal or impeachable misconduct.  I do not agree with presumptions made about his improper motivations or designs in carrying out his duties, for a second time, as Attorney General of the United States. Despite my many friends on the other side, my view has not changed. Nevertheless, people of good-faith can disagree and that is precisely what is offered by Messrs. Nader, Fisher, and Fein (sounds like a great law firm!)

Here is their letter for your consideration:

Continue reading “The Case Against Bill Barr: A Response To Professor Turley From Ralph Nader, Lou Fisher, and Bruce Fein”

Turley Testifies On The Lafayette Park Controversy [Updated]

downloadThis afternoon, I am testifying on the hearing on the controversy surrounding the clearing of Lafayette Park on June 1, 2020.  I was called to appear to address the underlying legal and constitutional standards governing such mass demonstrations.  For roughly 14 years, I was one of the lead counsels in the World Bank litigation that helped establish guidelines and case law governing such operations.  I have been critical of the force used to clear the park as well as the attack on a team of Australian journalists covered the protests.

The operation to clear the Park began two days before with the plan to install fencing.  By Monday, a small barrier was in place around the park itself and the clearing operation was to push back the crowd to a perimeter to allow the higher fencing to be installed beyond the range of debris or objects.  The crowd was pushed back to I St. from H St. by the line of officers.  (The hearing title and the testimony refers to the “Lafayette Park” or “Lafayette Square Park” generally.  In fact, the immediate park was closed off and we are discussing the operation to clear the area for the installation of the higher fence).

As I state in the testimony, I believe the order to clear the area would be found lawful. It is the level of force (and a charging of the line of officers) that is likely to be the focus of any court.  I still do not see the need for this level of force in the use of batons and pepper spray.

I have attached my testimony below.

The hearing went until after 2 pm.

Continue reading “Turley Testifies On The Lafayette Park Controversy [Updated]”

“Irreparable Harm”: How The Flynn Case Became A Dangerous Game Of Legal Improvisation

440px-Michael_T_FlynnBelow is my column in USA Today on the D.C. Circuit ordering Judge Emmet Sullivan to dismiss the case of former National Security Adviser Michael Flynn.  After this column ran, new evidence emerged that further undermined the FBI and the targeting of Flynn, as discussed in another recent column.  Notes from fired FBI Special Agent Peter Strzok show that former FBI Director James Comey told President Barack Obama and Vice President Joe Biden that Flynn’s call to the Russian diplomat “appear legit.”  Nevertheless, Biden (who denied having anything to do with the case) is noted as raising the idea of a charge under the facially unconstitutional Logan Act, a law that has never been used successfully to charge a single person since the beginning of this Republic.  Comey of course was the one who later bragged that he “probably wouldn’t have … gotten away with it” in other administrations, but he sent “a couple guys over” to question Flynn, who was settling into his new office as national security adviser. We now know that, when Comey broke protocols and sent the agents, he thought the calls were legitimate and that agents wanted to dismiss the investigation in December for lack of evidence. They were prevented from doing so as Strzok, Biden, and others discussed other crimes, any crime, to nail Flynn just before the start of the Trump Administration.

If all of that seems “illegitimate” and “irregular,” it pales in comparison to how two judges on the D.C. panel viewed the handling of the Flynn case by Judge Emmet Sullivan.  It seems that everyone from the President to the Vice President to the FBI Director to ultimately the federal judge have engaged in a dangerous form of improvisational law when it came to Michael Flynn.  That will now hopefully end though many questions still remain.

It is possible for Judge Sullivan to appeal, though the upcoming hearing on Flynn has been removed from the docket.

Here is the column: Continue reading ““Irreparable Harm”: How The Flynn Case Became A Dangerous Game Of Legal Improvisation”

The D.C. Circuit Orders Dismissal of The Flynn Case

440px-Michael_T_FlynnIn an extraordinarily rare action, the United States Court of Appeals for the District of Columbia has ordered the dismissal of the case against former National Security Adviser Michael Flynn.  The mandamus order could well be unique and was based on clear disagreement with the actions of U.S. District Court Judge Emmet Sullivan along many of the lines that I previously discussed in columns (here and here and here and here and here).  Short of an order to remove Sullivan, this is the most stinging possible rejection of the prior orders and conduct by the Court. I have a column in USA Today on the decision.

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Bolton’s Win Could Cost Him More Than Just Profits

John_R._BoltonOn Saturday, federal district court judge Royce Lamberth denied a motion to enjoin the release of former National Security Adviser John Bolton’s tell-all book in a 10-page order.  The book, titled “The Room Where it Happened,” is already in circulation with reporters literally standing outside of the courthouse reading from it.  As argued in the column before the decision, Lamberth rejected the injunction.  However, he lambasted Bolton for his failure to complete the classification review that he agreed to as part of his taking the position with President Donald Trump.  There are already possibly classified subjects being teased out of the book by the media.  Lamberth decried the fact that Bolton has “gambled with national security” and said that his actions “raise grave national security concerns” but “the damage is done.” Perhaps it is done for the release but the damage to Bolton may only be beginning. As Lamberth noted, he now faces civil and criminal liability, which are discussed in the column. 

Here is the column: Continue reading “Bolton’s Win Could Cost Him More Than Just Profits”

Supreme Court Rules 5-4 Against Trump Administration Of DACA Rescission

SCOTUSIn a 5-4 ruling, the Supreme Court had blocked the Trump Administration from ending the Deferred Action for Childhood Arrivals (DACA) program as an “arbitrary and capricious” change.  Chief Justice John Roberts, joined by the four liberal judges, ruled that Trump’s decision violated the Administrative Procedure Act. It was another self-inflicted wound due to a poorly executed policy change in this area.  The ruling is based on procedural failures, not the merits or the underlying authority.

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A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders

1280px-Emmet_G._Sullivan_2012We have been having a spirited debate over the orders of U.S. District Judge Emmet Sullivan in the case of former National Security Adviser Michael Flynn.  Now, the United States Court of Appeals for the District of Columbia has given Judge Sullivan ten days to respond to the motion for his removal.  The language is not discretionary so Sullivan will likely to have address the two controversial orders issued after the filing of the motion to dismiss.  In particular, he will have to state directly to the D.C. Circuit his understanding of his own discretion in such matters. I have maintained that the law in this areas is clear and that Sullivan has little ground upon which to deny this motion.  Continue reading “A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders”

Res ipsa loquitur – The thing itself speaks