Category: Criminal law

Chicago Faces 135% Increase In Carjackings . . . So Legislator Seeks To Ban “Grand Theft Auto”

My home city of Chicago continues to reel from soaring crime rates. Among the categories of increasing crime is a 135% spike in carjackings.  One would think that the legislators would be focused on better policing and other programs. Rep. Marcus Evans Jr. (D, Chicago) however wants to ban video games like “Grand Theft Auto” which depict “motor vehicle theft with a driver or passenger present.” While it would not likely make a dent in carjackings, it would curtail free speech and individual choice. Continue reading “Chicago Faces 135% Increase In Carjackings . . . So Legislator Seeks To Ban “Grand Theft Auto””

“A Date Which Will Live In Infamy”: The Other Scandal From The Capitol Riot

Below is my column in the Hill on the lingering questions over decisions made in Congress before the Capitol riot on January 6th.  The analogy to Pearl Harbor drawn by Senate Majority Leader Chuck Schumer may be more telling than intended.

Here is the column:

Continue reading ““A Date Which Will Live In Infamy”: The Other Scandal From The Capitol Riot”

Want To Prosecute Trump? It Will Require Proof Not Politics For A Viable Case

Below is my column in USA Today on the calls for criminal charges against former president Donald Trump and what is still missing from viable prosecutions.  In the meantime, civil lawsuits have been filed including one by Rep. Bennie Thompson alleging that Trump and others incited the riot on January 6th. Those civil lawsuits have the advantage a lower standard of proof than criminal prosecutions. If some cases can be sustained past motions to dismiss, they would also allow for discovery though those fights could draw out the litigation. However, Democrats may also be laying the foundation for Trump to claim vindication in defeating such cases in courts. Despite the assurance of the same legal experts of a strong case for prosecution, made-for-television cases do poorly in actual courts of law. What makes for good politics does not always make for good cases. However, bad cases can make for some really bad politics.

Here is the column:

Continue reading “Want To Prosecute Trump? It Will Require Proof Not Politics For A Viable Case”

New Comey Email Raises Additional Questions About His Use and Defense of The Steele Dossier

There is a new and intriguing document related to the Russian investigation out this week. Justthenews has released a previously undisclosed email from former FBI Director James Comey that raises additional questions about his role in using the now discredited Steele dossier as part of the FBI Russian investigation. The email on Jan. 12, 2017 email to then-Director of National Intelligence James Clapper falsely claims that Christopher Steele was found to be “reliable” but then states that the FBI could not “sufficiently corroborate the reporting.” The email went out the same day that Comey signed a FISA surveillance warrant application declaring that content from Christopher Steele’s dossier had been “verified.” We are still waiting for the results of the John Durham investigation but this email raised additional questions about Comey’s role. Comey has testified that he would not have approved such surveillance if he knew then what he knew now about the Steele dossier. Continue reading “New Comey Email Raises Additional Questions About His Use and Defense of The Steele Dossier”

Mutual Destruction: How Trump’s Trial Became A Tale Of Constitutional Noir

Below is my column in the Hill on second Trump trial and how core values quickly became the extraneous to the purpose of this constitutional process.  The final chaos triggered by Rep. Jaime Raskin (D., Md) only highlighted the procedural and legal irregularities in a trial that seem increasingly detached from values like due process.

Here is the column:

Continue reading “Mutual Destruction: How Trump’s Trial Became A Tale Of Constitutional Noir”

Did The Democrats “Tank” The Second Trump Trial?

Below is my column in USA Today on the lack of a strategy by the House to secure conviction in the trial of former President Donald Trump. As I have previously noted, the House managers did an excellent job in their presentations and many of the videotapes rekindled the anger that most of us felt over the riot. They also reinforced the view of many (including myself) that former president Donald Trump bears responsibility in the tragedy that unfolded due to his reckless rhetoric. Yet, there was a glaring omission in the substance of the House arguments. The managers did not lay out what the standard should be in convicting a former president for incitement of an insurrection and only briefly touched on proving any “state of mind” needed for such a conviction. That is why I have referred to their case as more emotive than probative. It lacked direct evidence to support the claim that Trump wanted to incite an actual insurrection or rebellion against the United States, as alleged in the article of impeachment.  I do not believe that an acquittal was inevitable in this case, but it was all but assured by critical decisions made by the House in this impeachment. The unforced errors discussed below raise the question of whether the Democrats “tanked” the trial.

Here is the column:

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“The First Amendment Does Not Apply”: A Response To The Letter Of Scholars In Rejecting Trump Arguments Under The First Amendment

“The First Amendment does not apply in impeachment proceedings.”  If there is a single line that sums up the sense of legal impunity in the second Trump impeachment, it is that line from a letter sent by law professors to deny any basis for the former president to challenge his impeachment on free speech grounds. The scholars call any such arguments “legally frivolous” but only after misstating the argument and frankly employing a degree of circular logic. While I agree with aspects of the letter, I believe that the thrust of the letter misses the point of those of us who have raised free speech concerns.  Continue reading ““The First Amendment Does Not Apply”: A Response To The Letter Of Scholars In Rejecting Trump Arguments Under The First Amendment”

Why Has Trump Not Been Charged With Criminal Incitement?

Below is my column in The Hill on the news that Donald Trump will not be charged with campaign finance violations linked to payments made to Stormy Daniels.  The report (and the start of the Senate trial) raise another question as to why Trump has not been interviewed, let alone charged, with the crime of incitement. Various members and legal experts have claimed that the case for prosecution is clear on its face. The crime occurred in public over a month ago, but there is no indication of a move to prosecute. Why? It is presumably not because prosecutors feel it would be too easy.

Here is the column:

Continue reading “Why Has Trump Not Been Charged With Criminal Incitement?”

West Virginia Woman Given Additional Year In Prison For Faking Her Death After Health Care Fraud Conviction

There is a bizarre case out of Charleston, West Virginia where Julie M. Wheeler has been given an additional year in prison after trying to fake her death to avoid sentencing for health care fraud. That secured an added conviction for conspiring to obstruct justice. Her husband will also now spend time in prison.

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A Question Of Intent: How The Trump Trial Is Designed To Enrage But Not Convict

Below is my column in the Hill on the trial briefs filed by the House and the Trump team for the second Trump impeachment trial.  The brief of the House promises an emotionally charged but legally insufficient case for conviction. Indeed, there is no evidence that the “prosecution” is designed to win the trial since the House offers little on the issue of intent. Conversely, if Donald Trump insists on arguing election fraud, he could conceivably engineer his own conviction.  Rather the strategy on both sides seems to be to enrage the emotions of viewers rather than prove an actual case for incitement to insurrection.

Here is the column: Continue reading “A Question Of Intent: How The Trump Trial Is Designed To Enrage But Not Convict”

Raskin: Trump’s Decision Not To Testify May Be Cited As Evidence Of His Guilt

Over the last four years, we have seen an alarming trend of law professors and legal experts discarding constitutional and due process commitments to support theories for the prosecution or impeachment of Donald Trump or his family.  Legal experts who long defended criminal defense rights have suddenly become advocates of the most sweeping interpretations of criminal or constitutional provisions while discarding basic due process  and fairness concerns.   Even theories that have been clearly rejected by the Supreme Court have been claimed to be valid in columns. No principle seems inviolate when it stands in the way of a Trump prosecution. Yet, the statement of House manager Rep. Jamie Raskin, D-Md., this week was breathtaking. A former law professor, Raskin declared that the decision of Trump not to testify in the Senate could be cited or used by House managers as an inference of his guilt — a statement that contradicts not just our constitutional principles but centuries of legal writing.  Yet, it appears a signature of this team of House managers. Rep. Eric Swalwell earlier insisted that the failure to then President Trump to turn over documents should be cited as evidence of guilt on any underlying claims.

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Rep. Waters: Trump Needs To Be Charged With Premeditated Murder

Over the last four years, there has been a type of race by politicians and pundits who seek to outdo each other in the most sensational claims of how Donald Trump could be prosecuted or impeached on an ever-expanding list of offenses. Each claim is stated with absolute certainty despite long-standing questions or constitutional barriers. Democratic Rep. Maxine Waters of California has been a standout in this crowd — calling for impeachments and prosecutions from the very beginning of Trump’s term in office. She is now insisting that Trump can and should be charged with “premeditated murder” over the deadly riots at the U.S. Capitol on Jan. 6th. The statement was made on MSNBC which has trafficked in such ridiculous theories without any pushback from the media or legal experts. Continue reading “Rep. Waters: Trump Needs To Be Charged With Premeditated Murder”

Why Hasn’t The House Held Hearings To Establish “Incitement Of Insurrection”?

We recently discussed how the Senate will have to decide whether to call witnesses in the second impeachment trial of former President Donald Trump. The use of a snap impeachment raises a basis for some senators to oppose such witnesses on institutional or prudential grounds. Democrats opposed any witnesses in the Clinton impeachment and there were no witnesses in the first Trump impeachment trial. Not surprisingly, the House is demanding witnesses. The initial vote in the trial shows that it is substantially short of the number of senators needed to convict and Trump could be acquitted on a virtual 50-50 vote. So here is my question: why has the House not used the last few weeks to call these witnesses and build the needed case to show intent to incite an insurrection? Weeks have gone by with key witnesses speaking to the press but not to the House.  Why? Continue reading “Why Hasn’t The House Held Hearings To Establish “Incitement Of Insurrection”?”

Do The Democrats Really Want Unity?

Below is my column in the Hill on the increasingly divisive rhetoric and actions taken on Capitol Hill. Rather than plot a course to between greater unity, many are seeking to muscle through extreme measures that will only further aggravate and deepen our divisions.  The media from the New York Times to the Los Angeles Times have run editorials encouraging aggressive moves to secure control of the Senate, including the ending of the filibuster. That move would make every vote a muscle play — producing sweeping changes in a country that is clearly divided and seeking political compromise.

Here is the column: Continue reading “Do The Democrats Really Want Unity?”

“Everybody’s Mistakes Except My Own”: Trump’s Final Pardon List Offers A Telling Reflection On His Legacy

I can pardon everybody’s mistakes except my own.” Those words of Cato of Elder have long been the principle guiding presidents who have resisted the temptation of issuing themselves self-pardons.  There have been ample abuses of this power, but that is one dishonor that presidents have spared the country. Despite predictions by many in the media, Trump left office without adding that ignoble distinction. He did not grant clemency to himself, his family, or close associates like Rudy Giuliani. What is so telling is that we are so shellshocked from the last four years that this act of restraint was a reason for celebration and praise.  Notably, the lack of the self-pardon might not be a welcomed by critics as it may appear. There is now no impediment to a charge for incitement, a much-touted possible charge that some of us believe would fail ultimately in the courts on either the trial or appellate levels.

Continue reading ““Everybody’s Mistakes Except My Own”: Trump’s Final Pardon List Offers A Telling Reflection On His Legacy”