Below is my column in The Hill newspaper on the recent disclosure that the FBI opened an investigation into whether President Donald Trump was working for Russia after his firing of former FBI Director James Comey. In reading the story, it struck me that the emerging picture from early 2017 looks increasingly like a study in cognitive bias. Indeed, it raises a rather intriguing possibility that both sides may feed each other in reaching the wrong conclusions.
Turkey granted imprisoned PKK leader Abdullah Öcalan his first visitor in nearly two years this Saturday. Turkish courts ruled in 2016 that he was to receive no visitors, including family. Mr. Öcalan has not had access to visits from his attorneys since 2011 despite filing over seven hundred requests to do so. Mr. Öcalan was visited by his brother, Mohammad Öcalan.
While it is unclear exactly why Turkey had a change of heart regarding the visits, it was recently widely reported on Thursday in Turkish and Kurdish news media that a jailed member of Kurdish People’s Democratic Party (HDP) in Turkey is suffering “life-threatening” medical conditions during her hunger strike that started sixty-five days ago. She began the strike to protest the conditions and isolation that Mr. Öcalan was experiencing at the hands of his Turkish captors.
Despite a series of self-inflicted wounds by President Donald Trump over the Russian investigation in pressuring former Attorney General Jeff Sessions and directly discussing the investigation with former FBI Director James Comey, Trump has reportedly returned to the same pattern in lashing out with Acting Attorney General Matt Whitaker. If true, it is entirely baffling. Republicans and Democrats have uniformly objected to these communications as improper and raising the appearance of influencing the investigation. It also undermines Whitaker’s position.
Below is a column on the Flynn’s sentencing hearing and the curious turn of events in the case. He is now scheduled for a new sentencing hearing in March 2019. Interestingly, while I have repeatedly stated in print and television that Flynn does not deserve sympathy, I have been widely quoted as saying that I have called for such sympathy. My point is simply that there are serious concerns raised by how this interview was handled, including the intentional effort to have Flynn interviewed without counsel. Moreover, it is possible to denounce such false statements without exaggerating the specific crime itself. It is still unclear why Flynn lied when the conversation of such sanctions was not strange or improper. Indeed, the Administration publicly was saying that it wanted a new start with Russia and would reexamine all aspects of the relationship. The hearing however quickly went off the rails. I have a great deal of respect for Judge Emmet Sullivan and have appeared before him on countless occasions. But this hearing took a radical departure from the record and the specific crime being addressed in sentencing.
Below is my column in The Hill Newspaper on the recent admission by James Comey that he intentionally circumvented the White House Counsel and Justice Department protocol to send two agents to interview then National Security Adviser Michael Flynn. It is a subject that will hopefully be raised this week when Comey appears again before Congress on Monday. Comey describes his sudden realization that he could “get away with” sending “a couple guys over” to the White House. Comey’s epiphany could be his epitaph.
We have yet another court ruling that a university denied the most basic due process protections to a student accused of sexual assault. For example, the University of Southern California appeared entirely unmotivated and uninterested in determining if stains on clothing of the victim was blood or red paint from a party where “students splattered paint on each other.” What is astonishing is that, while spending little time to guarantee a fair process, the university has continued to litigate this case to try to protect its right to summarily convict accused students. Claremont McKenna College and the University of California-Santa Barbara were previously cited for such due process violations.
President Donald Trump is reportedly considering the appointment of Bill Barr to be the 77th Attorney General of the United States. If true, it would be Barr’s second stint as Attorney General after his service 1991 to 1993 during the administration of President George H. W. Bush — only the second time in history for such a successive appointment. I have known Bill Barr for years and represented him during the Clinton impeachment (with other former Attorneys General). He is one of the most brilliant lawyers I have known and would be a brilliant selection by President Trump for the position. To put it simply, he is the perfect choice for this position at this time. He is a rock solid leader who would bring stability and authority to the Justice Department.
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.
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.