“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”
Category: Criminal law
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?”
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.
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”
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.
Continue reading “Raskin: Trump’s Decision Not To Testify May Be Cited As Evidence Of His Guilt”
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”
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”?”
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?”
“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.
Some of the crimes committed in the Capitol riot are truly breathtaking. One of those was the alleged theft of the laptop belonging to Speaker Nancy Pelosi (D-Calif.). That alone is extraordinary but now federal officials are alleging that Riley June Williams not only took the laptop but tried to sell it to the Russians. That allegation would ratchet up charges already including knowingly entering or remaining in any restricted building or grounds without lawful authority, violent entry, and disorderly conduct on Capitol grounds. Williams, 22, is a health care worker. Continue reading “FBI: Woman Who Stole Pelosi’s Laptop May Have Tried To Sell It To The Russians”
Below is my column in USA Today on the upcoming Senate trial of President Donald Trump. The Hill recently my second column on why the best defense of Trump could be no defense — to skip the Senate trial and force a threshold vote on the constitutionality of the trial of an ex-president.
Here is my column: Continue reading “The Senate’s Cadaver Synod: The Trial Of Citizen Trump Would Raise Serious Constitutional Questions”
Former FBI Director James Comey declared yesterday that he believes Joe Biden should consider granting clemency for President Donald Trump “as part of the healing of the country.” Just as I have long opposed self-pardons as an abuse of presidential power, I also have long opposed such pardons by their presidential successors. Comey is echoing the Ford rationale used in the Nixon pardon, which I continue to view as the wrong decision. Impeachments go to the status of presidents as the officeholders. Indictments go to their status as individuals. Indeed, I have long believed that presidents can be indicted while in office, including both President Bill Clinton and President Donald Trump. Continue reading “No, Joe Biden Should Not Pardon Donald Trump”
With the entry of the 217th vote, the House of Representatives have impeached President Donald Trump for a second time. As I have previously stated, my primary objection to this action is the use of a snap impeachment that dispenses with the traditional hearing or inquiry of impeachment. There was no opportunity to debate the language or the implications of the language. Indeed, the House gave the President a threshold challenge based on this process. With the addition of a possible trial after Trump leaves office, the rush to judgment could become a parade of constitutional horribles. The use of impeachment to “remove” a president who has already left office is ripe for challenge on the Senate floor and even later in the federal courts.
Continue reading “President Donald Trump Impeached For Second Time”
As reported by Newsweek, Rep. Mikie Sherrill (D., N.J.) has gone public with an extraordinary allegation against some of her colleagues that they conducted secret surveillance in a conspiracy with rioters at the Capitol. If true, those members could be criminally charged and expelled from the House. Conversely, if Sherrill has no such evidence, she could (and should) face a resolution of censure or resolution.
District of Columbia Attorney General Karl Racine has declared that he is considering arresting President Donald Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks with inciting the violent invasion of the U.S. Capitol. He noted that, while the Justice Department does not believe you can charge a sitting president, he can do so in a matter of days. Ironically, I believe Trump can be indicted immediately as a constitutional matter but that his prosecution would ultimately collapse on free speech grounds.
Continue reading “DC Attorney General Looking Into Arresting Trump and Others”