Category: Courts

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

Lies, Damned Lies, and Presidential Debates: The Rhetoric and Reality Of Gun Control

Below is my column in the Hill newspaper on the reality and rhetoric of gun control in light of promises in the Democratic primary. The fact is that many of the ideas raised by the candidates have merit but they are likely to be marginal in their impact on real gun-related fatalities.

Here is the column:

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Congress, Constitutional Law, Courts

D.C. Circuit Rules In Favor Of White House In Barring McGahn Testimony [Updated]

This morning I have a column in the Hill newspaper on the devastating loss of the House of Representatives in The Committee on Judiciary v. Don McGahn last night. The D.C. Circuit sided with Trump in reversing a lower court and refusing to order the appearance of former White House Counsel Donald McGahn before Congress. It is not just a huge victory for the White House in barring such testimony but a devastating loss to the authority of Congress in future conflicts. I strongly disagree with the decision, though the panel fractured on both the result and the rationale. Only one judge adopted the extreme view that Congress should not have standing to seek relief from any conflicts with the White House over witnesses and evidence. Yet, the opinion represents one of the greatest legal loss in the history of the House of Representatives in terms of its enforcement of oversight authority. Notably, this follows another victory for the Trump Administration in the D.C. Circuit earlier in the week on the Trump Hotel.

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Courts, Politics

Precedent Over “Perceptions”: D.C. Circuit Dismisses Case Against Trump Hotel

Over a year ago, we discussed the challenges brought against President Donald Trump for alleged emoluments and unfair competition connected to his properties. One of those cases was brought by my colleague, Alan Morrison who argued the case on appeal. Despite my respect for Professor Morrison, I have been critical of the theories advanced in the case, Cork v. Trump Post Office. The D.C. Circuit has now unanimously rejected the claims. Even accepting all of the facts alleged by the Plaintiffs, the court ruled that they failed to state a legal claim. In fairness to Professor Morrison and his team, this was a very difficult case with little case law to argue on the merits.

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Congress, Constitutional Law, Courts, Military, Politics

“The Southern Border Is Not A Militarized Zone”: Federal Judge Bars Some Funds For Border Wall In Defiant Decision

In Seattle, U.S. District Judge Barbara Rothstein has issued a defiant, and somewhat curious, decision that not only denies some funding for the Southern Wall but seems to defy the Supreme Court in its recent decision in the area. Rothstein barred President Donald Trump from diverting $89 million intended for a military construction project in Washington state to build the border wall. While the Supreme Court recently lifted an injunction on such lower court rulings, Rothstein insisted that that case involved different plaintiffs and issues. I fail to see the clear distinction and the Rothstein decision, in my view, works too hard to find such a distinction.

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Congress, Constitutional Law, Courts, Politics, Society

Second Circuit Rules In Favor Of Trump Administration On Sanctuary Cities

The Trump Administration won a major victory with decision by the 2nd US Circuit Court of Appeals in favor of its sanctions against “sanctuary cities” which refuse to cooperate with federal immigration enforcement. The decision in New York v. Department of Justice reversed a lower court ruling blocking the policy of withholding certain grants. Despite my disagreement with friends like Judge Napolitano, I previously stated that I thought the Administration would prevail ultimately on this challenge though there are good-faith arguments against government. The decision could have two immediate impacts. First, it will add pressure to cities in their opposition to the immigration policies. Second, it could create the type of split in the circuits that make a Supreme Court review more likely as these challenges move beyond the trial level.

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Courts, Media, Politics, Supreme Court

No, Sotomayor Should Not Recuse Herself From All Cases Involving The Administration

President Donald Trump has called upon both Supreme Court justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from any cases involving his administration over their past comments. The trigger for this twitter storm is a recent rebuke by Sotomayor of her conservative colleagues where she suggested that they were showing bias in favor the Trump Administration. The statement of Sotomayor, which surprising to many of its directness, is not a basis in my view for such a recusal or disqualification.

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Courts, Criminal law, Media

Judge Jackson Slams Stone Defense Over Disqualification Motion

I previously wrote that I thought that the motion to disqualify Judge Amy Berman Jackson filed by the Roger Stone defense team was exceedingly weak and should not have been filed. Jackson has now rejected the motion, but the final line of the opinion is a real stinger. The judge effectively accuses the team of filing a frivolous motion to pander to the public. It was ill-conceived and poorly executed motion that only further alienated the court.

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Courts, Criminal law, Lawyering, Media

Stone Moves To Remove Jackson From Case [Updated]

Roger Stone’s defense team moved to force the recusal of Judge Amy Berman Jackson from the case for bias. These motions have a very low success rate and this particular motion likely has an even lower likelihood of success. Jackson is a respected and experience judge. I actually was taken aback by a couple of her comments about the case but courts of appeal are extremely reluctant to force such recusals. Moreover, the main thrust of the motion is a statement about the jury which would be viewed as virtually standardized language for courts. Update: the Defense motion is available below.

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Columns, Courts, Criminal law, Lawyering, Media, Society

Juror 1261: Was Justice Undone In The Trial Of Roger Stone
Twitter Photo

Below is my column in the Hill newspaper on the controversy surrounding the foreperson on the Stone trial and the discovery of biased public comments made before she was called as a juror. The comments raise very serious questions about not just the inclusion of Tomeka Hart on the jury but the legitimacy of the conviction in light of her participation. Courts are extremely reluctant to set aside verdicts and often deny motions for new trials like the two filed by Stone. However, such disclosures make a mockery of the process — and ultimately the court — if undisclosed bias does not have a remedy for a defendant. No defendant can prove conclusively that such bias made the difference, but no prosecutor can prove that it did not. What remains is a dangerous element of doubt in a criminal trial.

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Constitutional Law, Courts, Free Speech, Politics, Supreme Court

Ginsburg Declares ERA Dead And Calls For New Campaign

I have long criticized Supreme Court Justice Ruth Bader Ginsburg for making comments on political issues to liberal and academic groups.  While not unique on the Court in what I have called the era of “celebrity justices”, Ginsburg is something of recidivist in abandoning the long-standing avoidance of political discussions by justices as well as issues that are likely to come before the Court.  Despite repeated controversies in speaking publicly on political issues, Ginsburg is clearly undeterred.  This week, Ginsburg tripped both wires in discussing a matter in litigation and heading toward the Court while encouraging what would be a political campaign for a new constitutional amendment. As we have discussed, there is currently litigation over whether the Equal Rights Amendment was ratified by the recent vote in Virginia. Ginsburg did not wait for the appeal and announced that the ERA is dead. She then called for a new ERA movement. Both statements were inappropriate, but the statement on the status of the amendment was wildly at odds with standards of judicial restraint and ethics.

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Courts, Criminal law, Politics

Judge Postpones Flynn Sentencing . . . Again

The Justice Department has secured yet another postponement of sentencing for former national security adviser Michael Flynn. Even though the Justice Department recently dropped its demand for jail time, it appears to be continuing its scorched Earth campaign against Flynn. It is demanding that Flynn waive attorney-client privilege with his prior law firm to allow them to explore his claims of ineffective counsel. Given the dropping of a demand for jail time, the requested additional delay seems gratuitous and retaliatory. Nevertheless, Judge Emmet Sullivan granted the indefinite postponement.

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

The Trump Verdict: Why Bad Cases Can Make Bad Law

With the exception of one vote on one article of impeachment (by Sen. Mitt Romney), the acquittal of President Donald Trump went as predicted with a party-line vote. Notably, however, the vast majority of senators, including a significant number of Republican senators, expressly rejected the core defense offered by Professor Alan Dershowitz in their statements –rejecting the position that impeachable offenses must be based on criminal allegations and does not include allegations of abuse of power. What we did not see, as discussed in this column in The Washington Post, was a bipartisan rejection of Article II.

Here is the column:

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Courts, Criminal law, Politics

Justice Department Drops Demand For Jail For Flynn

The Department of Justice has dropped its demand for former National Security Adviser Michael Flynn to serve time under his plea agreement. Flynn was attempting to withdraw his plea after the Justice Department set out in what was an overtly vindictive campaign against him in court. The Flynn case remains a troubling matter for those who have followed the Russian investigation. He pleaded guilty to a false statement that seems relatively minor in comparison to false statements made by Justice officials like Andrew McCabe or leaks by figures like James Comey.

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Congress, Constitutional Law, Courts

“If I Have To Fight For Recognition, I Will”: Paul and Roberts On Collision Course Over Whistleblower Questions [UPDATED]

Yesterday’s question and answer period was a largely choreographed exercise with legal teams spontaneously responding to questions with preset video clips and visual displays. However, there was one major but largely overlooked moment that raises some serious issues over the authority of the presiding officer vis-a-vis the Senate. In the midst of the questions, Robert spiked a question from Sen. Rand Paul (R, Ky). It concerned the whistleblower and the underlying legal premise for barring the question could prove controversial today. UPDATE: Roberts again refused to read the question of Sen. Paul. After the Chief Justice refused to ask his question, Rand walked out of the Senate.

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