Below is my column for the BBC on the controversy over President Donald Trump’s national emergency declaration. Sixteen states, led by California’s Attorney General, are now suing. Others lawsuits have been filed on behalf of landowners and others. The lawsuits appear to challenge both the basis for an emergency declaration and the funding. I still expect Trump to prevail in the long-run if this goes to the Supreme Court. Ironically, House Intelligence Chair Adam Schiff said this weekend that this controversy would be the “test” of his colleagues integrity and principles. Yet, Republicans could easily point out that Schiff never objected or took action when President Barack Obama circumvented Congress, including ordering the payment of potentially billions out of the Treasury after Congress refused to fund part of the Affordable Care Act. He was also silent when Obama not only refused to get authorization for the Libyan War but used undedicated funds to pay for it without an appropriation from Congress.
As this column discusses, there was at one time a much easier way to resolve the most bitter differences among political figures.
Below is my column in the Hill newspaper on a growing mythology building around the nomination of Bill Barr for Attorney General of the United States. One of the most prominent is that Barr was intentionally evasive about releasing any report from Special Counsel Robert Mueller. Members of both parties have overwhelmingly called for the release of the report. However, Democratic members pushed Barr to promise to release the entire report before he actually reads it.
Barr said repeatedly that he believed that not only the completion of the Special Counsel investigation but the release of the information was in the public interest. Barr was repeating the standard from the regulation, which is precisely what he should do. That standard says that the Attorney General has discretion to conclude that “these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.” What the Democratic senators were demanding would have been an unethical pledge to release a report without knowing its contents. Federal law prevents the disclosure of a myriad of different types of material from Grand jury (or Rule 6(e)) material to classified material to material covered in privacy or confidentiality laws as well as possible privileged material. After pushing him on whether he would act ethically, it was a curious request for a facially unethical and unprofessional pledge. Here is what Barr said:
“I also believe it is very important that the public and Congress be informed of the results of the special counsel’s work . . .For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political or other improper interests influence my decision.”
This morning I will be testifying before the Senate Judiciary Committee in the confirmation hearing for William Barr for United States Attorney General. The hearing will start at 9:30 a.m. in Room 216 in the Hart Senate Office Building.
It is called In re Grand Jury Subpoena No. 18-3071 and it just might be the first ruling on an issue in the investigation of Special Counsel Robert Mueller by the Supreme Court. The U.S. Court of Appeals for the D.C. Circuit recently ruled on the matter under seal involving a corporation presumably owned by a foreign government. The corporation lost in its bid to quash the subpoena under the protections of the Foreign Sovereign Immunities Act. The D.C. Circuit imposed a daily fine, which was enjoined by Chief Justice John Roberts on Sunday night. While not a ruling on the merit, it could be a historical moment as the first Mueller matter to make it to the Court.
Below is a column on the Flynn’s sentencing hearing and the curious turn of events in the case. He is now scheduled for a new sentencing hearing in March 2019. Interestingly, while I have repeatedly stated in print and television that Flynn does not deserve sympathy, I have been widely quoted as saying that I have called for such sympathy. My point is simply that there are serious concerns raised by how this interview was handled, including the intentional effort to have Flynn interviewed without counsel. Moreover, it is possible to denounce such false statements without exaggerating the specific crime itself. It is still unclear why Flynn lied when the conversation of such sanctions was not strange or improper. Indeed, the Administration publicly was saying that it wanted a new start with Russia and would reexamine all aspects of the relationship. The hearing however quickly went off the rails. I have a great deal of respect for Judge Emmet Sullivan and have appeared before him on countless occasions. But this hearing took a radical departure from the record and the specific crime being addressed in sentencing.
Below is my column in USA Today on the recent decision effectively striking down the Affordable Care Act. While Judge O’Connor technically ruled only on the individual mandate, he found that the unconstitutional provision could not be severed from the rest of the Act. Nevertheless, he will have to address the remaining issue and the question of the injunctive relief. There is a good chance that the severability ruling will be reversed but that could still leave the ruling on the individual mandate.
In a surprising move, U.S. District Judge Emmet G. Sullivan ordered Mueller late Wednesday to turn over all of the government’s documents and “memoranda” related to Flynn’s questioning. This follows a Flynn filing that described an effective trap set by agents who encouraged him not to bring a lawyer and left inconsistencies unaddressed in what has been described by critics as a “perjury trap.” I have practiced in front of Judge Sullivan for years and he is a respected judge who has a keen eye for prosecutorial and investigative abuse. That does not mean that he will find such abuse here and could ultimately make a finding that nothing improper occurred. Yet, despite a recommendation of no jail time, Sullivan wants to review the entire record before deciding on the issue.
Below is my column in the Hill newspaper on the recent public statement issued by Chief Justice John Roberts. While I am entirely sympathetic with the statement (which is also true) about the unfairness in referring to “Obama judges” ruling against the Trump Administration, the public rebuke only highlighted the glaring disconnect in Roberts’ defense of apolitical courts and his deafening silence over the conduct on his own Court.
There is an important federalism ruling out of Michigan that will likely rekindle the debate over the continuing inherent powers of the states vis-a-vis the federal government. Despite the massive expansion of the federal criminal code, most crimes were viewed as state not federal matters in the early days of the Republic. Now, a federal judge in Michigan has ruled that Congress went beyond its constitutional domain in 1996 in criminalizing female genital mutilation. The issue is not whether FGM should be criminalized but whether this is a state or a federal matter under the Constitution. Over half of states (27) have criminalized FGM. Senior United States District Judge Bernard A. Friedman threw out six of the federal charges against Jumana Nagarwala, who was accused of performing FGM on girls around the age of seven. Continue reading “Federal Judge Strikes Down Law Criminalizing Female Genital Mutilation”→
In a victory for the media, Judge Timothy J. Kelly has ruled that CNN’s Jim Acosta must be given back his access to the White House. However, it is not an entire victory. As we discussed earlier, the court recognized some basic procedural protections and required the White House to state clearly the grounds for revoking the clearance. The court expressly said that he has not found a violation of the First Amendment and has not determined that Acosta cannot be eventually barred from the White House. He wants further information from the White House if it intends to continue to bar Acosta. Continue reading “FEDERAL COURT ISSUES ORDER FOR CNN’S JIM ACOSTA TO BE GIVEN ACCESS TO THE WHITE HOUSE BUT . . .”→
A couple of days ago, we discussed the prospect of CNN suing the Trump Administration over the suspension of CNN’s Jim Acosta’s press credentials after a flair up in a former press conference with President Donald Trump and the refusal of Acosta to surrender the microphone. CNN has now filed its lawsuit and it is basically the claims that we anticipated with one addition: a claim that the move violated the Administrative Procedure Act. As I have said from the outset, I strongly oppose the move by the White House, even though I feel that Acosta went too far in the press conference. However, I still remain a bit more cautious than many commentators on what is being described as a slam dunk of a case. Continue reading “CNN Files Challenge To Suspension Of Acosta’s Press Access”→