Today I have two columns in USA Today and The Hill on the sacking of Jeff Sessions and appointment of Chief of Staff Matthew Whitaker as Acting Attorney General. The Hill column challenges arguments that Whitaker must recuse himself. However, this morning some members and commentators have declared that Whitaker cannot serve as an Acting Attorney General under federal law. I have to disagree. While not getting into the merits of the selection, it seems clear to me that, under 5 U.S.C. 3345, that Whitaker does indeed qualify. (This of course does not address the long-standing debate over the constitutionality of such laws. A challenge can be made under the Appointment Clause of the Constitution, mandating that a “principal officer” in the federal government may not be appointed without Senate confirmation).
Conspiracy theorists Jacob Wohl and Jack Burkman, a conservative lobbyist and radio host, are outspoken supporters of President Donald Trump and called reporters to come to a Holiday Inn in Washington to hear from a woman who would allegedly accuse Special Counsel Robert Mueller of sexual misconduct. Previously, Mueller referred an allegation to the FBI that women were promised money to accuse him of wrongdoing. With the no show of their accuser, Wohl and Burkman could well be looking at both criminal and civil liability.
Below is my column in The Hill newspaper on recent stories indicating that top Justice Department officials raised the recusal of Deputy Attorney General Rod Rosenstein back in June 2017. I first raised Rosenstein’s recusal in June and August of that year when the Mueller investigation began based on his role in the firing of James Comey and I have repeatedly called for the recusal since then (here and here and here). Unless Mueller has told Rosenstein that he does not consider obstruction to be a serious matter for criminal investigation in this context, it is difficult to see how Rosenstein can continue. Indeed, even if Mueller rejects obstruction theories, Rosenstein should not have continued as his superior in the investigation while that matter was explored in compliance with the mandate given Mueller.
Here is the column:
Below is my column in the Hill newspaper of the New York Times story alleging that Deputy Attorney General Rod Rosenstein spoke to this staff near the start of his tenure about secretly taping President Donald Trump and organizing a cabinet effort to oust Trump through the Twenty-Fifth Amendment. Rosenstein denies the accuracy of the story and some have said that he discussed the possibility in jest. The New York Times has responded by saying that it was clear that the comments were made seriously and not in jest.
It is still not clear what Trump will do despite many (including myself) arguing that he should not fire Rosenstein. On Sunday, however, Trump told Geraldo Rivera that this was ultimately the fault of Attorney General Jeff Sessions (who selected Rosenstein) and that “we will make a determination” about what to do about the story.
Below is my column in The Hill newspaper on the rising pressure on Sen. Susan Collins over her vote on Supreme Court nominee Brett Kavanaugh. There is considerable anger over Collins maintaining that she would never vote for a nominee hostile to Roe v. Wade but refusing to acknowledge the widespread view of Kavanaugh as not only hostile to the reasoning of Roe but appointed by a president who promised only to nominate an anti-Roe justice. As with Neil Gorsuch, Collins appears inclined to vote for Kavanaugh despite her oft-repeated pledge. She insists that she is comfortable after Kavanaugh told her that Roe is “settled” law. However, many have put Collins’ position as falling somewhere between hopeful thinking and willful blindness. As discussed below, the unsettling thing about settled law is that only five votes make anything truly settled on the Court.
Adding to the political dimension are polls showing that the hearings did not produce a bump for confirmation. The latest polling shows 38 percent in favor of Kavanaugh and 39 percent opposed.
Yesterday, we discussed the prosecution of accused Russian agent Maria Butina and how prosecutors put out clearly false allegations that she traded sex for favors. Butina’s defense counsel Robert Driscoll called out the government for the clearly baseless allegations spread throughout the media. U.S. District Judge Tanya Chutkan has now responded by gagging counsel, an order that has become all too common in federal cases. Continue reading “Defense Counsel Calls Out DOJ For Falsely Accusing His Client Of Trading Sex For Access . . . Court Imposes Gag Order On Counsel”
Below is my column in The Hill newspaper on the Kavanaugh confirmation hearing and the opening statement of Sen. Sheldon Whitehouse attacking the conservatives on the Supreme Court as a virtual ideological cabal. I have always found Whitehouse an articulate and insightful member of the Congress. He was not alone in these attacks. However, I found the attack on the current justices to be unwarranted and distorted. There is a tendency when you disagree with a decision like Hobby Lobby to conclude that the motivations of the justices must therefore be raw politics. The possibility that the justices, including Justice Kennedy, are following a coherent jurisprudential view is dismissed in favor of partisanship.
Below is my column in The Hill on the continuing promotionals for “The Notorious RBG.” I have long been a critic of this trend toward celebrity justices and the discomfort over these campaigns is not simply about Ruth Bader Ginsburg. The culture of the Court is changing and I do not believe it is changing for the better.
Here is the column:
Continue reading “The Notorious RBG and the Problem With The Celebrity Justice”
In a brief exchange with Judge T.S. Ellis III, former Trump campaign chair Paul Manafort declined yesterday to take the stand in his own behalf. His defense then declined to present its own case and moved the trial to closing arguments. Given the highly damaging evidence offered by the prosecution, there is little that will be offered to actually refute the charges. The decision to waive testimony and a defense case can be a strong strategic choice in a case where the defense savaged the prosecution. That is not this case. Continue reading “Manaport Declines To Testify Or Present Defense in Alexandria Trial”
Below is my column in the Hill newspaper on the controversial statements of the judge presiding over the trial of Paul Manafort, the former Trump campaign chairman. Judge T.S. Ellis III has raised growing concerns over his comments in court, particularly before the jury.
Controversial FBI official Peter Strzok has been fired by the FBI — joining former acting FBI director Andrew McCabe in the ignoble distinction of being terminated by an agency that rarely jettisons its own. The firing creates an obvious dissonant element to the Democratic defense of Strzok as someone unfairly hounded by the Republicans. The terminations of McCabe and Strzok are based on the view of officials who viewed their conduct as unacceptable and, in McCabe’s case, potentially criminal.
One notable controversy was raised by Strzok attorney Aitan Goelman, who maintained that Deputy Director David Bowdich “overruled” the FBI’s Office of Professional Responsibility to remove him. The suggestion is that career officials did not view Strzok’s conduct as warranting such action.
Strzok was with the FBI for 21 years. It did not take time for Trump to tweet out the news:
Strzok was removed from the special counsel probe last year after the discovery that his incendiary text messages with FBI lawyer, who had an affair with Strzok.
I am interested in the basis for Strzok’s attorney claiming that the deputy director “reversed the decision of the career FBI official responsible for employee discipline who concluded, through an independent review process, that a 60-day suspension and demotion from supervisory duties was the appropriate punishment.” There should be some explanation from Goelman as to whether that is true and, if so, the basis for such a reversal. Generally, the recommendation of the OPR carries considerable weight in such matters. However, the ultimate decisions rests with officials like Goelman on whether the findings warrant more serious sanctions.
President Donald Trump continued his ill-advised tweeting about the Special Counsel investigation, calling on Attorney General Jeff Sessions to stop Robert Mueller “right now.” Putting aside that Sessions correctly recused himself from such matters over a year ago, the demand for terminate the investigation undermines Trump’s legal team and, for those other than his core base, it comes across as defensive and increasingly alarmed about the investigation. I have never understood these tweets because I have yet to see compelling evidence of a crime by Trump linked to obstruction or collusion.
Lost in the mix of Manafort and other news, there is a significant development in Special counsel Robert Mueller’s investigation. Mueller has referred a number of cases to the Southern District of New York for possible prosecution, including reportedly case involving longtime Democratic lobbyist Tony Podesta and his work for his former firm, the Podesta Group and former Obama White House counsel Greg Craig, a former partner at law firm Skadden, Arps, Slate, Meagher & Flom LLP. It is not clear if charges would emerge from these cases but the referral further decentralizes the investigation.
In one of the most troubling orders issued by a court in years, U.S. District Judge John F. Walter issued an order on Saturday to the Los Angeles Times to remove information from an article describing a plea agreement between prosecutors and a Glendale police detective. The detective is alleged to have been in the pocket of the blood-soaked Mexican Mafia. The newspaper discovered the details in a posted order on PACER the online court database, which was supposed to be left under seal. I have been in cases when such mistakes have occurred but the court’s actions in this case drive to the heart of press freedom in this country. In my view (which will hardly surprise our regular readers), the order is a direct and dangerous violation of the First Amendment. [UPDATE: After a national outcry, the judge has rescinded his order and says that he was not sure that the LA Times had obtained the material legally.]
Below is my column in The Hill newspaper on the latest rationale for opposing any nominee of President Donald Trump: that any nomination or confirmation must wait until the completion of the investigation by Special Counsel Robert Mueller. It is a claim being voiced by both politicians and academics despite the absence of constitutional or historical support.
Here is the column: