Category: Justice

President Trump Pledges To Override State Orders As Ninth Circuit Upholds California Church Order

ninth-circuit-logodonald_trump_president-elect_portrait_croppedThis week, President Donald Trump has pledged that he will “override” state orders barring in-person religious services unless governors do so.  As I have previously noted, the President is claiming authority that is expressly denied to him in our system of federalism. While I have warned such deference given to the states wanes with time, any order to reopen churches in a given state will be based on the inherent authority of the courts, not the President.  This issue could be coming to a head with the split decision of a panel in the Ninth Circuit late Friday to uphold the order Gov. Gavin Newsom barring large in-person religious services.  Early on in the pandemic, I wrote about how governors can shutdown churches under the Constitution. The Administration can, and has promised, joined legal challenges to such state orders but it is not claiming the inherent authority of presidents to “override” state decisions.  The Justice Department has warned Newsom that his order is contravening constitutional rights.

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The Flynn Court Drifts Dangerously Outside Judicial Navigational Beacons

Der Untergang der TitanicBelow is my column in USA Today on concerns over the recent orders of U.S. District Court Judge Emmet Sullivan. As leading lawyers, including a former Clinton U.S. Attorney openly advise Sullivan on how to “make trouble” for the Administration, these calls only magnify concerns over the purpose of these proceedings and whether they are increasingly detached from the merits of the pending motion. While many seem to relish the improvisational element, they risk undermining the judicial element of the proceedings. Flynn’s team has sought the removal of Sullivan (a very difficult proposition, particularly in the D.C. Circuit).  The intense opposition in the bar and teaching academy to Trump seems again to have greatly distorted the legal analysis, which fails to address the most troubling aspects of these orders.  As I have previously acknowledged, there are good-faith arguments to be made but much of the analysis has ignored the strong precedent against a denial of the motion and rarely even acknowledge the serious implications for the rights of defendants in such action. I address some of the countervailing (and in my view controlling) authority in a separate posting.

Notably, the D.C. Circuit gave Judge Sullivan ten days to respond to the motion seeking his removal. Thus, these issues will presumably be addressed by Judge Sullivan before any hearing is held.

Here is the column: Continue reading “The Flynn Court Drifts Dangerously Outside Judicial Navigational Beacons”

Logan Act Is The Last Refuge For The American Prosecutorial Scoundrel

440px-Michael_T_FlynnBelow is my column in The Hill on a largely overlooked part of the recent material to be released in the Flynn case as well as the testimony released by the House Intelligence Committee: the focus on the Logan Act as the way to charge former National Security Adviser Michael Flynn.  Indeed, I recently disagreed with former President Barack Obama on clearly false legal statements made about the Flynn case.  However, within those false statements was a crushing irony.  Obama is mentioned in the documents as discussing the use of the Logan Act against Flynn.  While Obama decried (falsely) the lack of precedent for the dismissal of the Flynn case, he previously discussed the use of a clearly unconstitutional statute against Flynn that has never been used successfully to convict a single person since the start of the Republic.

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“A Contradiction In Terms”: Chuck Todd’s “Inadvertent” Journalism


Yesterday, I was critical of a segment by NBC News’ Chuck Todd that addressed the motion to dismiss the case against former National Security Adviser Michael Flynn, including the use of a statement by President Obama without noting that he was wrong on the underlying charge and wrong on the absence of precedent (including a high-profile case from his own Administration).  I previously called for the motion that was filed and criticized those who have ignored the clear evidence of prosecutorial abuse, including possible violations of Brady and standing court orders.   It is always unnerving when Todd starts a discussion about the Trump Administration with “it is not partisan to say . . .” During Todd’s questioning of the panel on NBC’s Meet the Press, he used a clearly deceptive clip of a statement by Attorney General Bill Barr to suggest that Barr simply justified his decision as an exercise of raw power.  Both the question and carefully clipped soundbite belie the later statement from Todd’s staff that the misrepresentation of Barr’s words as “inadvertently and inaccurately” edited. However, Todd has not issued an apology and NBC has only issued this brief statement.  Such expectations seem quant relics in this age of rage and echo journalism. Many in the media seem to have embraced Hunter Thompson’s rejection of  “objective journalism” as “a pompous contradiction in terms.” What is a contradiction in terms is this type of inadvertent journalism. (For full disclosure, I testified in favor of Barr’s confirmation before the Senate Judiciary Committee).

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President Obama Declares “There Is No Precedent That Anybody Can Find” For The Flynn Motion [He May Want To Call Eric Holder]

President_Barack_Obama Former President Barack Obama is being quoted from a private call that the “rule of law is at risk” after the Justice Department moved to dismiss the case against former national security adviser Michael Flynn. Obama reportedly told members of the Obama Alumni Association that “There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.”  Without doubting the exhaustive search referenced by President Obama, he might have tried calling one “alum”: former Attorney General Eric Holder.  Holder moved to dismiss such a case based on prosecutorial errors in front of the very same judge, Judge Emmet Sullivan. [Notably, CNN covered the statements this morning without noting the clearly false claim over the lack of any precedent for the Flynn motion]

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Andrew McCabe’s Bizarre CNN Interview

McCabeMany in the media have struggled mightily to ignore the highly disturbing evidence that has been released in the Flynn case and to paint the decision to dismiss the case as a raw political act by Attorney General Bill Barr.  CNN this morning even called former Deputy Director Andrew McCabe who proceeded to make statements about the record that were utterly absurd and untrue. Not only was McCabe not challenged on the statements, it was never mentioned that he was fired after being found by career investigators to have lied to them (the very charge against Flynn). Despite the fact that his false statements were related to this very case, it was not deemed relevant to raise by CNN with CNN’s senior analyst. McCabe however displayed the very bias and maliciousness documented by career investigators before he was fired. The interview reminds one of the recently released text of FBI Deputy Assistant Director Peter Strzok to Lisa Page, the Special Counsel to FBI Deputy Director Andrew McCabe, remarking that “our utter incompetence actually helps us.”

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The Justice Department Drops Flynn Case

440px-Michael_T_FlynnOver a week ago, I wrote a column calling for the Justice Department to drop its case against former National Security Adviser Michael Flynn. I have long been a critic of the case but the new evidence undermined not just the legitimacy of the prosecution but of the Justice Department itself.  The Justice Department just moved to dismiss the case, a belated but commendable decision.  The Flynn case represents one of the most ignoble chapters of the Special Counsel investigation. Notably, the motion itself could lay the foundation for suing on the basis of malicious prosecution.

While Judge Emmet Sullivan could dismiss the charges on the papers (an unopposed motion), I would expect a hearing to be called. There is a great irony here. Sullivan’s last hearing on sentencing led to controversial statements from the bench and a delay in sentencing that resulted in an easier path to dismissal.

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New Documents Show Strzok Countermanded Closure Of Flynn Case For Lack Of Crime

peter-strzok-and-lisa-pageYesterday, I discussed the release of new FBI documents in a column and on the blog.  Much of the discussion yesterday concerned the disclosure of documents showing FBI officials debating how they could trap Flynn in a crime.  They focused on the Logan Act, a flagrantly unconstitutional law that has never been used to convict a single U.S. citizen.  These documents do not show prosecutors finding a way to arrest someone suspecting of a crime. They show prosecutors trying to create a crime.  However, there is also other evidence that is equally troubling over the role of one of the most controversial figures in the Russian investigation, fired former Special Agent Peter Strzok.  It now seems that it was Strzok who reached out to stop investigators from closing the Flynn case for lack of a crime. He then manufactured a crime. The response of media and legal experts to excuse this thuggish and abusive record is nothing short of breathtaking.

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“Far More Troubling”: Flynn Document Release Could Foreshadow Blockbuster Report

440px-Michael_T_FlynnLast night, many of us were digesting the highly disturbing documents released in the case of former National Security Adviser Michael Flynn.  As I discussed this morning in a Hill column, the documents reveal an effort to entrap Flynn, including the use of a blatantly unconstitutional statute to achieve that “goal.” However, there appears far more than has not been released, according to various sources.  The release of the Flynn documents highlight what  Attorney General William Barr said on “The Ingraham Angle” on April 10th and stated that “far more troubling” material will be released as a result of the investigation of U.S. Attorney John Durham. I believe it is a mistake for Barr to give such foreshadowing interviews before the release of the Durham report. While I agree with Barr ordering these reviews (and his view of the evidence so far), these interviews only undermine the credibility and that of the eventual report. (For full disclosure, I testified in favor of Barr’s confirmation before the Senate Judiciary Committee).  Putting that aside, the evidence strongly supports Barr’s effort to force the disclosure of material that has been buried despite the claims of full investigations by Congress and the Inspector General.  Bizarrely, the media and many liberal commentators are struggling to ignore these troubling disclosures and the obvious abuses that they reflect within the Justice Department.

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Schiff and Democratic Leaders Push For IG Investigation Of Bill Barr Over Comments

440px-William_BarrThere  is an interesting fight brewing on the Hill after House Intelligence Committee Chairman Adam Schiff and Judiciary Committee Chairman Jerrold Nadler called for the Justice Department inspector general to investigate Attorney General Bill Barr over his comments on the firing of the intelligence community watchdog, Intelligence Community Inspector General Michael Atkinson.  What is curious is that Barr justified the firing on the very basis that I previously raised in a blog column, While I was highly critical of the move, I noted that termination would have been justified if Atkinson continued to assert that he would not follow Justice Department interpretations of federal law.  However, President Donald Trump made clear that he fired Atkinson for the worst possible reason: the merits of the Ukrainian allegations reported to Congress.  So Schiff and Nadler are calling for an investigation into Barr over his arguing what would be legitimate grounds for a termination? It is not clear to me what the IG is supposed to do with such a request.  Sen. Dianne Feinstein, D-Calif., and Sen. Mark Warner, D-Va., have also requested a review of Barr’s comments. (For full disclosure, I testified in favor of Barr’s confirmation before the Senate Judiciary Committee).

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Virtual Democracy: Congress and The Supreme Court Need To Move Into The Virtual Space

Below is my column in The Hill newspaper on the baffling reluctance of Congress and the Supreme Court to allow for remote or distance technology as an alternative to physical sessions. Democracy at a distance is better than no democracy at all in times of emergency. President Donald Trump was asked about Congress allowing remote voting given the various Senators who are now in quarantine. He thought that it was a good idea but that there may be constitutional barriers. The greatest barriers, particularly for the Supreme Court, remain cultural not constitutional.

Here is the column:

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COVID-19 Situation Demonstrates The Potential For Harm To Society Caused By Politicians

By Darren Smith, Weekend Contributor

Putting aside the discussion of whether or not actions taken by various elected officials were reasonable, the hurried effects suffered by the public during the COVID-19 virus pandemic at the behest of politicians should if anything prove the potential for damage caused by unscrupulousness or incompetence in government.

Today’s events should be by now a self-evident reminder of the great importance of putting the right people in office and the folly of settling for very fallable politicians. The next coming weeks will make that point likely more for you, with less consideration to your rights or interests.

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MSNBC Legal Analyst: Trump Must Be Investigated For Negligent Homicide And Manslaughter

YouTube Screenshot/MSNBC

We recently discussed how an American University professor called for the impeachment of President Donald Trump over his handling of the coronavirus outbreak. Not to be outdone, MSNBC legal analyst Glenn Kirschner is now declaring that Trump should be charged with negligent homicide over his conduct. While insisting that, as a former prosecutor, this is something he “actually know[s] too much about,” Kirschner proceeds to utterly misrepresent the controlling law and definitions of such a criminal case. While I come from the other perspective of a criminal defense attorney, the argument being put forward by the MSNBC legal analyst is devoid of any basis in the law. It does however play well for those who believe impeachment or prosecution are entirely fluid and relative concepts when it comes to Trump.

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Free The Trolls: The Justice Department Moves To Drop Major Mueller Case Against Russian-Linked Companies

It appears that trolls are enjoying St. Patrick’s Day as much as Leprechauns. The Justice Department shocked many by dropping the matinee case of former Special Counsel Robert Mueller against two Russian companies accused of funding the “troll farms” in the 2016 election. Many critics have charged that the trolling operation was laughingly ineffective and clumsy. Moreover, the evidence against the companies, including Concord Management and Consulting LLC and Concord Catering, was questioned. The prosecutors, while defending the original charges, moved to dismiss the case because they viewed the trial as threatening national security secrets. That claim seemed like more of a spin in a case that never seemed to materialize into hard evidence to support these charges. Update: The company has announced that it will sue the U.S. government for billions in damages — a move that will once again raise this same information for trial.

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FBI Agents Connected To Carter Page Surveillance Barred From FISA Process

In a further demonstration of the abuses that led to the surveillance of Trump officials, the Foreign Intelligence Surveillance Act (FISA) court has barred FBI officials involved in the wiretapping of former Trump campaign adviser Carter Page from appearing before the court. in rebuke that exceeded the remedial recommendations made by the independent monitor recently appointed by the court. Notably, this goes beyond the recommendations for David Kris, the highly controversial choice as an independent monitor of reforms. The order of Judge Boasberg further belies arguments that the surveillance of the Trump-relate figures was well-based and justified, as I discussed in any earlier column.

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Res ipsa loquitur – The thing itself speaks