Category: Justice

Columns, Constitutional Law, Criminal law, Justice, Media, Politics

The Case For and Against The Appointment Of A Special Counsel In The Hunter Biden Investigation

Below is my column in the Hill on grounds for and against the appointment of a Special Counsel in the Hunter Biden investigation. By refusing address the underlying allegations, Joe Biden is magnifying the concerns over possible conflicts of interest and his own possible exposure. Biden is maintaining that he will not ask potential Justice Department nominees about the investigation but he is also refusing to answer specific questions. In the meantime, he appeared to confirm that he views the investigation to be Russian disinformation.  That is a familiar profile in a scandal at the start of an Administration and Democrats are likely to face their own prior calls to investigate the Trump family on such questions of foreign influence.

Here is the column: Continue reading “The Case For and Against The Appointment Of A Special Counsel In The Hunter Biden Investigation” →

Columns, Justice, Politics, Uncategorized

Bill Barr’s Family Time: How The Justice Department Has Lost One Of Its Staunchest Defenders

Below is my column in the Hill on the early departure of Attorney General Bill Barr.  The move will give Trump the record on Attorneys General.  That is not good.  A President cannot selected too many Supreme Court justices or too few Attorneys General. Reports indicate that, with Barr leaving, Trump is openly discussing appointing a special counsel for the Hunter Biden investigation.  At this point, that appears entirely unnecessary and would further tarnish the image of Trump as someone who is interfering with the internal decisions of the Justice Department. What is clear is that Barr proved a critical fire wall for the Department at one of its most chaotic and challenging periods. As I have previously said, Barr remains more sinned against than sinner and history will vindicate his tenure at the Justice Department.

Here is the column: Continue reading “Bill Barr’s Family Time: How The Justice Department Has Lost One Of Its Staunchest Defenders” →

Justice, Media

“Portion Control”: CNN’s Stelter Slams Coverage of Hunter Biden Scandal As CNN Buries Both The Biden And Swalwell Stories

CNN’s media reporter Brian Stelter appeared to answer my question from a couple days ago on whether the media would bury that scandal involving Democratic Rep. Eric Swalwell. The answer is now clearly yes. Indeed, Stelter was critical of coverage on Fox as excessive on the Biden scandal as his network continues to downplay or bury both the Biden and the Swalwell stories. To cover the Biden story would expose CNN’s own failure to honestly report a major story before the election in order to protect Biden. This is scandal that not only raises the possible criminal prosecution of the son of the incoming president but involves emails and evidence that directly contradict Joe Biden’s past denials of knowledge or involvement. Stelter however views the problem as covering the story too much.  It seems that it is not Biden controlling the media but the media simply controlling its “portions.”

Continue reading ““Portion Control”: CNN’s Stelter Slams Coverage of Hunter Biden Scandal As CNN Buries Both The Biden And Swalwell Stories” →

Justice, Politics, Society

No Good Deed Goes Unpunished: Trump Attacks Barr On Not Disclosing Ongoing Biden Investigations

This morning, Brian Kilmeade did an excellent interview with President Donald Trump and pressed him on issues like a possible floor challenge to the certification of the 2020 election under what I have called a “Death Star” strategy.   Trump notably refused to answer that question and whether he would attend the inauguration by saying “I don’t want to talk about that.”  What he clearly wanted to talk about was Attorney General Bill Barr, who is facing calls to be fired for his maintaining confidentiality over ongoing federal investigations linked to Hunter Biden. Kilmeade pressed Trump on the attacks on Attorney General Bill Barr and quoted me as saying that Barr acted correctly in declining to reveal ongoing investigations related to Hunter Biden.  Trump responded that he is only asking for what Special Counsel Robert Mueller did in correcting a false news story in 2019. I disagree with the analogy with that clarification, which presented a very different ethical and factual situation.  Barr did exactly what he had to do to protect not just the integrity of these investigations but the integrity of the Justice Department as a whole.

Continue reading “No Good Deed Goes Unpunished: Trump Attacks Barr On Not Disclosing Ongoing Biden Investigations” →

Columns, Constitutional Law, Courts, Criminal law, Justice, Lawyering, Media, Politics

Flynn’s Cadaver Synod: The Court Dismisses A Dead Case But Not Before It Flogs The Corpse

Below is my column in the Hill on the conclusion of the case of Gen. Michael Flynn, which ended (not surprisingly) with one last gratuitous and controversial act from the court.  Judge Emmet Sullivan decided to effectively flog Flynn on his way out of his court.

Here is the column: Continue reading “Flynn’s Cadaver Synod: The Court Dismisses A Dead Case But Not Before It Flogs The Corpse” →

Criminal law, Justice, Media, Politics

Hunter Biden Is Under Federal Investigation

Hunter Biden confirmed yesterday that he is indeed under investigation by the U.S. attorney’s office in Delaware for possible tax violations.  For years, the media has maintained a virtual blackout on Hunter Biden stories even as some of us noted that a 2019 subpoena indicated an active criminal investigation. Apparently, there was no way to “say this nicely” so the media said virtually nothing at all. The son of the incoming president will now be investigated by his father’s Justice Department. In the meantime, many in the media are still struggling with the journalistic version of the denial stage in the Kübler–Ross stages of grieving.  The move during the lame duck period could reflect a desire to iron plate the investigation before the arrival of a Biden Justice Department. It will certainly add a new complication to any already difficult situation with a pending Special Counsel investigation.

Continue reading “Hunter Biden Is Under Federal Investigation” →

Criminal law, Justice, Politics

“It’s Going Down”: The Justice Department Charges Two Women on Terrorism Charges

We have been discussing the previously announced use of terrorism laws to address violent protests around the country, a move that I have criticized as raising civil liberty concerns. There have been cases that arguably fit a terrorism model however and now the Justice Department has charged a new such case against two women associated with Antifa and anarchist groups. Samantha Frances Brooks, 27, and Ellen Brennan Reiche, 23, were charged with terrorism crimes in allegedly trying to place a “shunt” on railroad tracks to cause a train to derail. Continue reading ““It’s Going Down”: The Justice Department Charges Two Women on Terrorism Charges” →

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

Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle

Below is my column in USA Today on the implications of the appointment of U.S. Attorney John Durham as a Special Counsel.  House Intelligence Committee Adam Schiff and other Democrats have already denounced the move and called for the next Attorney General to consider rescinding the appointment.  While Schiff previously called for legislation to protect Special Counsel Robert Mueller to complete his work without interference from the Attorney General, he ramped up the rhetoric against Durham as leading a “politically motivated investigation.” Durham was previously praised by Democrats and Republicans alike as an independent, apolitical, and honest prosecutor.  After insisting that the public has a right to see what has been uncovered over years of investigation by Mueller, they are now pushing to end the Durham investigation and forestall any final public report.

Here is the column:

Continue reading “Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle” →

Criminal law, Justice, Lawyering, Politics

Carter Page Files $75 Million Lawsuit Against The FBI, Comey, McCabe, and Others

Former Trump campaign aide Carter Page on Friday has filed a $75 million lawsuit against the Federal Bureau of Investigation (FBI) and former high-ranking officials, including former FBI Director James Comey, and Andrew McCabe. The complaint includes eight claims that range from violations to the Foreign Intelligence Surveillance Act (FISA), Federal Tort Claims Act, a Bivens claim, and Privacy Act. It is very well written, but it will be challenging given the discretionary authority of justice officials in some of these actions. For full disclosure, I previously discussed Page’s case with both Page and his counsel (particularly after a column on his case). I have been a critic of his targeting for years and have spoken with Page on the investigation.  I view Page as a victim of an abusive federal investigation and ideally he should be afforded relief for his treatment. Federal case law however presents barriers for people in his position. If he were to prevail, it could create important precedent protecting citizens and civil liberties for the future.

Continue reading “Carter Page Files $75 Million Lawsuit Against The FBI, Comey, McCabe, and Others” →

Justice, Politics, Society

An Island of Virtue Among Today’s Elected Officials: Water District & Sewer District Commissioners

By Darren Smith, Weekend Contributor

I’ll go out on a limb and make a proposal, based mostly on anecdotal observations I have made during my adult life of both politicians and elected officials–there is a difference–and what these individuals have often gotten us into. I have come to the conclusion that among the various cultivars of politics, the two positions that for me have consistently remained the most benevolently virtuous, and least damaging to ordinary people, are not the high-profile, ostentatious seats in various houses of parliament, legislatures, or a presidency. They are often the more behind-the-scenes, yet foundationally necessary public service elected officials often known as Water District and Sewer District Commissioners.

They might not be the most well-known, which in itself is an admirable quality, but they serve for me as a model of how we would be as a society better off if politicians adopted the approach of these commissioners and not that of petty tyrants or worse that seem to be attracted to politics.

Continue reading “An Island of Virtue Among Today’s Elected Officials: Water District & Sewer District Commissioners” →

Constitutional Law, Criminal law, Justice, Lawyering

The Best Case For A Flynn Pardon May Be The Conduct Of The Court Rather Than The Defendant

President Donald Trump is reportedly considering a pardon for his former National Security Adviser Michael Flynn this week. As someone who has long opposed Trump’s pardons of Trump associates like Roger Stone and  Joe Arpaio, I do not come easily to the idea of pardon for someone like Flynn. However, the strongest case for a pardon for Flynn was not made by his lawyers as much as his judge, the Honorable Emmet Sullivan. Sullivan’s continued controversial actions in the case could be cited as a credible, if not a compelling basis, for a pardon of Flynn. Continue reading “The Best Case For A Flynn Pardon May Be The Conduct Of The Court Rather Than The Defendant” →

International, Justice, Media, Politics

Biden Laptop Was Subpoenaed By The FBI in 2019 As Part Of A Money Laundering Investigation

Last night, Fox News reported that the laptop allegedly belonging to Hunter Biden was subpoenaed last year by the FBI in a money laundering investigation. While the status and the targets of the investigations are unknown, the subpoena would appear to support the fact that these emails are authentic and that the laptop was Biden’s. While House Intelligence Committee Chair Adam Schiff and roughly 50 “intelligence experts” have assured the public that this is just Russian disinformation, both the FBI and the Director of National Intelligence have now confirmed that they do not believe the laptop and its contents are Russian disinformation. Now it appears that the laptop was viewed as sufficiently connected to possible federal crimes to be subpoenaed as evidence by the FBI a year ago. Continue reading “Biden Laptop Was Subpoenaed By The FBI in 2019 As Part Of A Money Laundering Investigation” →

Bizarre, Criminal law, Justice, Politics

Whitmer Lashes Out At Barr Over Kidnapping Plot Despite The FBI Uncovering The Plot And The DOJ Prosecuting The Plotters

Michigan Gov. Gretchen Whitmer was the target this month of a plot of extremists to kidnap her and storm the state capitol.  After the arrests of the primary suspects, Whitmer lashed about at President Donald Trump for failing to condemn right wing violence. That is certainly a common criticism. However, Whitmer also attacked Attorney General Bill Barr and suggested that he knew about the plot.  It was a curious attack since the FBI uncovered the plot and the DOJ is prosecuting the plot. There is no indication that the DOJ was delaying action. To the contrary, it acted to thwart the plot and protect Whitmer.  The other question is why would Barr lie about his knowledge?  To what logical end? He was not asked about any threats but specifically if he knew about signs and statements made a protest in Lansing, Michigan in June — a protest that was under state, not federal, jurisdiction.

Continue reading “Whitmer Lashes Out At Barr Over Kidnapping Plot Despite The FBI Uncovering The Plot And The DOJ Prosecuting The Plotters” →

Congress, Criminal law, Justice, Media, Politics

What Rings Comey’s Bell: The Former FBI Director’s Casual Testimony Confirms the Worst About His Tenure

In his long-awaited testimony before the Senate Judiciary Committee, former FBI Director James Comey’s testimony proved as casual as his appearance in an open shirt from his home office. Comey was hammered with embarrassing findings of errors under his watch in the handling of the Russian investigation, including the reliance on information that FBI agents warned might be Russian disinformation supplied by a Russian agent. After years of investigation, the FBI was unable to show that a single Trump official conspired or colluded with the Russians. Instead, investigations found extensive errors, irregular and criminal conduct, and statements of intense bias by key FBI figures. Yet, Comey proceeded to give what amounted to a series of shrugs in either denying any recollection of such information or deflecting responsibility to others. Continue reading “What Rings Comey’s Bell: The Former FBI Director’s Casual Testimony Confirms the Worst About His Tenure” →

Constitutional Law, Criminal law, Free Speech, Justice, Politics, Society

The Use of Sedition Laws Against Rioters Would Be Wrong

I have been critical recently of remarks attributed to Attorney General Bill Barr, including the alleged consideration of criminal charges against a mayor for not acting against rioters and the use of sedition charges against some individuals. The latter allegation was reinforced by the Associated Press after it obtained a memo to United States attorneys.  The memo suggests a more general use of sedition for anyone opposing government authority by force. Such a use of sedition laws directly threatens free speech values and would return to dark periods of the suppression of dissent in our country.  It is also entirely unnecessary given the array of ample and severe laws available to punish looters and rioters.

Continue reading “The Use of Sedition Laws Against Rioters Would Be Wrong” →

Res ipsa loquitur – The thing itself speaks