Category: Courts

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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Congress, Courts, Politics, Supreme Court

Supreme Court Rules That Trump Administration Can Go Forward With Public Charge Rule Of Immigrants

The Supreme Court delivered a major, if temporary, victory for the Trump Administration in the immigration field. The Administration has sought to implement the “public charge rule,” that would allow the denial of immigrants who will rely on public assistance, including most forms of Medicaid, food stamps and housing vouchers. In a brief order, the Supreme Court voted 5-4 to lift a nationwide injunction and allow the rule to be implemented while litigation continues.

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Congress, Constitutional Law, Courts, Criminal law

The Times Editorial Misstates The Law In Call For Roberts To Issue A Subpoena To Bolton

The news of the Bolton book leak has electrified Washington and, as intended, has rekindled calls for witnesses. I have long stated a preference for witnesses despite my criticism of the historic blunder of the House leadership in rushing this impeachment forward on an incomplete record. However, the media has now latched on to a column in the New York Times by Neal K. Katyal, Joshua A. Geltzer and Mickey Edwards that Chief Justice Roberts can not only order a subpoena for Bolton solely on the request of the House managers but that his decision cannot be overturned by anything less than a two-thirds vote. I believe that the premise of the argument on the vote is highly flawed and should not be seriously entertained by either the House managers or the Chief Justice.

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Congress, Constitutional Law, Courts, Politics

No Pettifogging: Roberts Admonishes Both Legal Teams After Late Night Outburst

Near midnight, the House managers and White House legal team erupted into name calling and recriminations. The confrontation led to Chief Justice John Roberts to admonish both sides and remind them that this is supposed to be the “world’s most deliberative body” and that “those addressing the Senate should remember where they are.” He also repeated a ruling from the 1905 trial of Judge Charles Swayne that there should be no accusations of “pettifogging.” With those words, the pettifog (bickering over trifles and petty disputes) dissipated from the chambers.

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

What History Really Tells Us About Senate Trials

200px-110th_US_Senate_class_photoBelow is my column on history — and some dubious historical claims — related to Senate impeachment trials.  As with the conflicting position on witnesses of some senators, the growing narrative in the media that Republicans senators have departed from the tradition of the Senate in commenting on trial has more hypocrisy than history behind it.  I have repeatedly encouraged senators not to discuss the evidence or their likely votes, but that is a rule honored historically in the breach by members of this curious trial jury.

Here is column: Continue reading “What History Really Tells Us About Senate Trials” →

Congress, Constitutional Law, Courts, Politics, Uncategorized

Nadler: Hunter Biden Must Not Be Called

hunter-bidenI have been writing on the obvious relevance of Hunter Biden  as a defense witness and the equally obvious hypocrisy of some Democrats in demanding their own witnesses while refusing to consider key White House witnesses.  Now. House Judiciary Chairman Rep. Jerry Nadler, D-N.Y., has suggested that, if a trade is needed to secure House witnesses, the managers will not agree to any witnesses if Hunter Biden is part of the deal.   If true, is the House prepared to give up on proving its case to protect the Bidens from the ignoble moment of answering questions about the Ukraine contract?  That is a considerable price to pay to protect Joe Biden.  It is also another reason why the decision to rush the impeachment vote was such a historic blunder by Speaker Nancy Pelosi. If they had waited a couple months as I called for in my testimony, they could have called these witnesses and not handed over control to the Senate. Instead, they impeached by Christmas and then waited a month. Continue reading “Nadler: Hunter Biden Must Not Be Called” →

Bizarre, Courts, Free Speech, International, Media, Politics

Advertising Authority in the United Kingdom Bans Computer Advert For Only Having Male Actors As Gender Stereotyping

I have previously criticized the new law, enforced by the U.K.’s Advertising Standards Authority (ASA), that bans gender stereotypes in advertising. It is the ultimate expression of the “nanny state” phenomenon in the United Kingdom where speech is increasingly regulated and sanctioned by the state along a best values agenda. In 2019, commercials for Philadelphia Cream Cheese and Volkswagen were banned that left many of us speechless, particularly those who wanted to use humor in commercial speech. The latest example of this censorship is UK retailer PC Specialist, which saw an advert banned simply because it showed three men excited over using a PC for gaming. The problem? Women like gaming too. Just having men therefore further a gender stereotype.

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Academia, Bizarre, Congress, Constitutional Law, Courts

History and Its Revision: The Use and Misuse Of The Nixon Precedent

Professor Ken Hughes of University of Virginia recently penned a column to denounce the utter partisanship and lack of integrity in Washington as demonstrated by the failure of a single Republican to support the impeachment of President Donald Trump. He did not, of course, view the virtually unanimous vote by Democrats as partisan. Just the Republicans. The reason appears to be the view that the Democrats are right and therefore the Republicans are utter partisan hacks. To make his case, Professor Hughes makes equally selective observations about the history of impeachment, including singling out a line from my testimony before the House Judiciary Committee.

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Congress, Constitutional Law, Courts, Media, Politics

The Bolton Factor: Pressure Builds For Witnesses In The Senate Trial

My column today in the Washington Post explores the possibility of witnesses in the Senate impeachment trial and specifically what the Senate might do if the White House demanded a clearly relevant defense witness named Hunter Biden. As the column was coming out, former national security adviser John Bolton announced that, if subpoenaed, he is “prepared to testify” before a Senate trial. Some of us have been saying for months that Bolton was signaling to the point of screaming that he was eager to testify. Nevertheless, the House refused to subpoena him, let alone seek to compel his testimony. It was the same counterintuitive position that led to the House to withdraw its subpoena for top Bolton aide, Charles Kupperman. Bolton’s announcement only highlights the baffling blunder of the House in rushing this impeachment before creating a complete and compelling record for removal. Instead, it effectively handed over control of the case — and completion of its case — to the Senate and the opposing party.

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Courts, International, Military, Society

Trump Doubles Down In Threatening To Attack Cultural Sites Despite International Criticism
U.S. Department of State image

We recently discussed the shocking tweet from President Donald Trump that the United States might target cultural sites in retaliation of any response from Iran to our killing of an Iranian general. I suggested at the time that Trump may have been referring to legitimate target with dual cultural significance and strongly suggested a clarification. Well, he has now clarified and doubled down that he may target cultural sites — an act that is widely viewed as a war crime.

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Courts, Society

“Trust Me, I’m A Doctor”: Ninth Circuit Rules “Diet” Dr. Pepper Does Not Mean Diet Dr. Pepper

The United States Court of Appeals for the Ninth Circuit may have answered a question for all those who cannot understand why they are not losing weight when drinking diet sodas. The answer is that it is really not a diet drink. That is the ruling of the panel against the claim of Shana Becerra who proffered that the moniker is deceptive advertising in a lawsuit against Diet Dr. Pepper. By the way, remember the slogan “Trust Me I’m A Doctor?” It turns out that he is not even a real doctor. Lies upon lies.

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Congress, Constitutional Law, Courts, Politics

Federal Appellate Court Strikes Down Obamacare’s Individual Mandate

I have long been critical of the individual mandate under the Affordable Care Act or Obamacare (See, e.g., here and here and here). Yesterday, the Fifth Circuit Court of Appeals handed down a major 2-1 ruling striking down the mandate as unconstitutional. The litigation however will continue over the viability of the rest of the Act without the individual. As discussed in an earlier column, pulling out the individual mandate creates a Jenga-like dilemma for the courts.

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Constitutional Law, Courts, Politics

New York Court Dismisses State Charges Against Manafort

I previously wrote about what I viewed as a dangerous trend among New York Democratic politicians pledging to charge former Trump campaign chair Paul Manafort under state law to negate any benefit from a federal pardon by President Donald Trump. Democrats rallied supporters to the dubious cause of watering down the state protections against double jeopardy. It was the ultimate example of the mania surrounding Trump where citizens would take an axe to their own constitutional protections to get at Trump and his associates. The highly dubious effort was led by New York state attorney general Letitia James and, thankfully, it has failed. The New York courts are not nearly as dismissive of individual rights. The state charges were thrown out today on the basis of double jeopardy. The question is now whether this will be a prelude to a presidential pardon.

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Congress, Constitutional Law, Courts, Lawyering, Media

“A Judge Would Be Disqualified”: Justice Ginsburg Again Wades Into Political Controversies In Interview

I have previously criticized Supreme Court Justice Ruth Bader Ginsburg for her continued political comments in speeches to liberal and academic groups.  While not unique on the Court, Ginsburg has repeatedly crossed the line of traditional public speaking in discussing political controversies, pending issues before the Court, and even criticizing the President. Despite repeated controversies in speaking publicly on political issues, Ginsburg remains undeterred.  Earlier this year, Ginsburg again repeated her view that sexist voters prevented Hillary Clinton from being elected president — a repeat of controversial comments in her 2017 speech. This week, Ginsburg commented on the merits of President Donald Trump’s call for a review of the Supreme Court and even criticized senators who have made public statements about the impeachment.

Indeed, the most ironic part of her commentary was Ginsburg noting how inappropriate it is for senators to be discussing their views of the merits before any actual impeachment. She insisted “if a judge said that, a judge would be disqualified from sitting on the case.” That raises a rather uncomfortable question as to what Ginsburg was doing in that very interview.

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Courts, Criminal law

Flynn Judge Accuses Defense Counsel In Curious Plagiarism Claim
Judge Emmet Sullivan

It is bad enough when a judge refuses to let out your client from a plea deal but it is worse when he then suggests that his lawyer is a plagiarist to boot. That however is what former National Security Adviser Michael Flynn and his counsel, Sidney Powell, faced in the 92 page order of U.S. District Court Judge Emmet Sullivan. Flynn has been trying to get out of his plea bargain in light of new information of improper conduct by the FBI in its Russia investigation as well as exculpatory information regarding his guilt. Many of us have criticized the prosecution of Flynn who pleaded guilty to a single false statement in interviews with the FBI. In addition, Flynn may not want to be sentenced by Sullivan whose last major hearing included false allegations against Flynn and dramatic condemnations. One can certainly understand Sullivan’s refusal to let Flynn get out of a plea that he willingly entered. However, the opinion contained an attack on his counsel that seemed gratuitous and unsupported.

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