Missouri GOP Sen. Josh Hawley has called upon Attorney General Bill Barr to launch a federal civil rights investigation of the St. Louis couple who wielded guns outside of their house during a protest in their gated community. I have previously written about the possible charges against Mark and Patricia McCloskey and expressed my skepticism over the apparent effort of St. Louis Circuit Attorney Kim Gardner to find a criminal charge. However, Attorney General Barr should decline this request from Sen. Hawley. There is no civil rights violation in this investigation. Indeed, while I thought the charges could be defeated in trial or on appeal, I previously wrote that the vague criminal provisions could be used to bring a charge. The issue turns on how the guns were used. While I find the criminal provisions to be vague and the application in this case to be unwarranted, it is not a civil rights violation to advance such an interpretation of the law.
One of the most controversial figures selected by Special Counsel Robert Mueller for his investigative team was Andrew Weissmann. While some criticized Weissmann for perceived bias, many of us focused on his record of prosecutorial excess. Now a law professor at New York University, Weissmann appears eager to fulfill both criticisms. After the commutation of Roger Stone, Weissmann called for Stone to be pulled in front of a grand jury. It did not matter that there was no crime under investigation or likely criminal charge based on the use of a presidential power that is virtually absolute. Weissmann seemed to call for the use of the grand jury for a fishing expedition — precisely the type of alleged excessive use of prosecutorial power that he faced at the Justice Department. Weissmann is reportedly writing a book on the investigation with the reported titled “Where Law Ends: Inside the Mueller Investigation.”
This afternoon, I am testifying on the hearing on the controversy surrounding the clearing of Lafayette Park on June 1, 2020. I was called to appear to address the underlying legal and constitutional standards governing such mass demonstrations. For roughly 14 years, I was one of the lead counsels in the World Bank litigation that helped establish guidelines and case law governing such operations. I have been critical of the force used to clear the park as well as the attack on a team of Australian journalists covered the protests.
The operation to clear the Park began two days before with the plan to install fencing. By Monday, a small barrier was in place around the park itself and the clearing operation was to push back the crowd to a perimeter to allow the higher fencing to be installed beyond the range of debris or objects. The crowd was pushed back to I St. from H St. by the line of officers. (The hearing title and the testimony refers to the “Lafayette Park” or “Lafayette Square Park” generally. In fact, the immediate park was closed off and we are discussing the operation to clear the area for the installation of the higher fence).
As I state in the testimony, I believe the order to clear the area would be found lawful. It is the level of force (and a charging of the line of officers) that is likely to be the focus of any court. I still do not see the need for this level of force in the use of batons and pepper spray.
I have attached my testimony below.
The hearing went until after 2 pm.
The Daily Beast is out with another breathless account of the sycophantic, corrupt influence of Attorney General William Barr. The article entitled “Barr Reportedly Told DOJ Officials to Try and Undermine Michael Cohen’s Conviction” adds the subheading “The attorney general insists, meanwhile, that it’s nothing but a ‘media narrative’ to suggest he’s acting in the president’s personal interests.” The article bounced off a piece in the New York Times. The thrust of both the headlines and the story capture the total decoupling of reporting from factual or legal foundations. It could be denounced as a hit job but it completely misses its mark.
The House Judiciary Committee will be holding a hearing today on the allegations of political interference with the handling of Justice Department cases, including the controversy over the sentencing recommendations in the prosecution of Roger Stone, a longtime friend and confidant to President Donald Trump. As I said on NPR this morning, I think such hearings are important and legitimate efforts to answer such widespread concerns. (The hearing is stacked with only one witness allowed in defense of the Administration but that is unfortunately a long-standing problem in Congress). Even though I support the congressional inquiry, I continue to believe that the sentencing recommendation in Stone was excessive and unwarranted. I admittedly have a bias as a long-standing criminal defense attorney but I criticized the original sentencing memorandum before any action was taken by Main Justice. I have always maintained however that Stone was corrected convicted on some of these counts and warrants some jail time for his criminal conduct, including opposition to any presidential pardon.
In my travels I happened along a small act of community caretaking that brought a smile to the both of us. It was not so much what was done for a motorist with a disabled vehicle, but the degree of enthusiasm and resolve shown by a young police recruit in stepping up to the plate for a citizen in need that I found inspirational. So here’s a “hats off” to her and the WA Criminal Justice Training Commission for fostering such spirit.
Attorney General William Barr announced that Geoffrey Berman will be stepping down as the U.S. Attorney in Manhattan. That clearly came as a surprise to Berman who dashed off a blistering response that he is neither resigning nor stepping down until a replacement is confirmed by the United States Senate. Berman could now be fired, but the move by Barr raises legitimate issues for congressional investigation since Berman has been at the forefront of the investigation into Trump associates, including an ongoing investigation into Trump lawyer Rudy Giuliani’s business activities. The sudden late Friday replacement only added to those concerns and Barr needs to address these questions fully and quickly. This is a very serious matter if Berman is being canned due to his investigations, particularly given President Donald Trump’s continual criticism of those investigations. Update: As predicted, Trump has now fired Berman and Berman has agreed to leave immediately.
We previously discussed the insider trading allegations against Senators Richard Burr (R., N.C.) Dianne Feinstein (D., Cal.), James Inhofe (R., Okla.), and Kelly Loeffler (R., Ga.) over the selling of stocks after briefings early in the pandemic. As I stated earlier, I am highly skeptical of such cases as a criminal defense attorney as viable due to the difficulty in both the elements and the proof needed for such a charge. Yesterday, the Justice Department dropped three of the four investigations. Only Burr remains under investigation.
This 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.
Below 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.
Below 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.
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).
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]
Many 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.”