Category: Justice

A Bill Comes Due: Susan Collins Faces Rising Demands To Fulfill Her Promise To Vote Against A Presumed Anti-Roe Nominee

440px-Susan_Collins_official_Senate_photoBelow 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. 

Here is the column: Continue reading “A Bill Comes Due: Susan Collins Faces Rising Demands To Fulfill Her Promise To Vote Against A Presumed Anti-Roe Nominee”

Defense Counsel Calls Out DOJ For Falsely Accusing His Client Of Trading Sex For Access . . . Court Imposes Gag Order On Counsel

09dc-butina-jumboYesterday, 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”

Democratic Attacks On The Supreme Court Confuse Patterns of Principle with Politics

440px-Sheldon_Whitehouse_2010Below 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.

Here is the column: Continue reading “Democratic Attacks On The Supreme Court Confuse Patterns of Principle with Politics”

The Notorious RBG and the Problem With The Celebrity Justice

download-2Below 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”

Manaport Declines To Testify Or Present Defense in Alexandria Trial

ManafortIn 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”

Four “Yutes” And Counting: Controversy Grows Over The Judge’s Comments In The Manafort Trial

ManafortBelow 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.

Here is the column: Continue reading “Four “Yutes” And Counting: Controversy Grows Over The Judge’s Comments In The Manafort Trial”

FBI Fires Peter Strzok

peter-strzok-and-lisa-pageControversial 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.

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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.

Trump: Sessions Should Terminate The Mueller Investigation “Right Now”

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.

Continue reading “Trump: Sessions Should Terminate The Mueller Investigation “Right Now””

Mueller Sends More Cases To SDNY For Possible Prosecution

440px-Director_Robert_S._Mueller-_IIILost 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.

 

Continue reading “Mueller Sends More Cases To SDNY For Possible Prosecution”

Federal Judge Orders L.A. Times To Remove Information Of A Plea Agreement From Published Articles [UPDATED]

screen-shot-2018-07-17-at-7-22-46-am-e1531826624860.pngIn 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.]

Continue reading “Federal Judge Orders L.A. Times To Remove Information Of A Plea Agreement From Published Articles [UPDATED]”

Constitutional Time Out? Mueller Becomes Latest Basis For Opposing Any Trump Nominee

440px-Director_Robert_S._Mueller-_III440px-Official_Portrait_of_President_Donald_TrumpBelow 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:

Continue reading “Constitutional Time Out? Mueller Becomes Latest Basis For Opposing Any Trump Nominee”

The Kennedy Retirement Leaves The Court Without A Center of Gravity and Grace

225px-Anthony_Kennedy_OfficialBelow is my column in The Hill newspaper on the legacy and vision or Associate Justice Anthony Kennedy.  The departure of Kennedy will leave the Supreme Court more calcified and rigid in its ideological division. Chief Justice John Roberts now assumes the role of the swing vote with a center of gravity that will likely move further to the right.  His voice was unique and often profound.  He applied a conservative jurisprudence that emphasized the protection of individual rights and identity.  Time will show that Kennedy saw a horizon for our society that we are still struggling to attain.

Here is the column:

Continue reading “The Kennedy Retirement Leaves The Court Without A Center of Gravity and Grace”

The Long Overdue Death of Korematsu v. United States

JapaneseAmericansChildrenPledgingAllegiance1942-2For decades, law professors have discussed the 1944 decision in Korematsu v. United States as one of the most disgraceful and indefensible opinions ever issued by the United States Supreme Court. Yet, the Court has continued to cite Korematsu and has never expressly disavowed its denial of basic constitutional rights to Japanese Americans.  In a virtual aside by the majority in Trump v. Hawaii, Chief Judge John Roberts Jr. puts a well-aimed stake through the heart of the case and finally declares it to be overturned.

Continue reading “The Long Overdue Death of Korematsu v. United States”

“It Felt Really Good”: DOJ Employee Among Socialists Harassing Homeland Secretary Kirstjen Nielson At Restaurant

Kirstjen Nielsen restaurant

 

Two days ago, Homeland Security Secretary Kirstjen Nielsen was effectively chased from a restaurant by protesters screaming at her and her companion.  The scene at MXDC Cocina Mexicana was shocking to most of us who have decried the loss of civility in today’s political discourse.  One person clearly not shocked was Rep. Jackie Speier (D., Cal.) who defended the protesters and blamed it on Trump’s divisive political rhetoric.  While the protest seemed clearly organized, Speier portrayed it as a spontaneous expression of anger by citizens in her interview on CNN.  The scene was very disturbing as was the apparent impunity exercised by the protesters in shutting down a restaurant.  It now appears that it was a protest by the Democratic Socialists of America and one of those participating was a DOJ employee, Allison Hrabar.  Hrabar is reportedly a paralegal specialist and her participation could raise again our long-standing debate over the punishment of employees for comments or actions taken outside of the workplace.

Continue reading ““It Felt Really Good”: DOJ Employee Among Socialists Harassing Homeland Secretary Kirstjen Nielson At Restaurant”

Report: British Police Solve Just Four Percent Of Robberies and Three Percent Of Burglaries

Abbe-03According to The Sunday Times, shocking report shows that only four percent of robberies in England and Wales in 2017 were solved.  Only three percent of burglaries were solved. That is a dismal record and indicates that criminals can effectively act with impunity in victimizing citizens.

Continue reading “Report: British Police Solve Just Four Percent Of Robberies and Three Percent Of Burglaries”

Res ipsa loquitur – The thing itself speaks