Category: Lawyering

Stone Moves To Remove Jackson From Case [Updated]

Roger Stone’s defense team moved to force the recusal of Judge Amy Berman Jackson from the case for bias. These motions have a very low success rate and this particular motion likely has an even lower likelihood of success. Jackson is a respected and experience judge. I actually was taken aback by a couple of her comments about the case but courts of appeal are extremely reluctant to force such recusals. Moreover, the main thrust of the motion is a statement about the jury which would be viewed as virtually standardized language for courts. Update: the Defense motion is available below.

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Ex-Rep Confirms His Proposal Of A Pardon For Assange To Clear The Russians In The DNC Hack [Updated]

This week, many were surprised by the disclosure made by the lawyers for Wikileaks founder Julian Assange in London in the Westminster Magistrates’ Court. Edward Fitzgerald made a witness statement application for co-counsel Jennifer Robinson who shared information concerning ex-California representative Dana Rohrabacher. She claimed that he made Assange a startling offer: if he cleared the Russians as the source of the hacked emails at the Democratic National Committee, Rohrabacher could get a presidential pardon from President Donald Trump. Now Rohrabacher himself says that it is true and that he spoke of the plan with Trump White House Chief of Staff, though he did not speak of the plan with Trump himself. The timing is particularly unfortunate for the White House with a report that U.S. intelligence believes that Russia is again seeking to intervene in the election and appears to be intervening in favor of Trump. Update: A new story suggests that the Russians could also be helping Bernie Sanders.

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Former Bush Deputy AG Denounces Barr As “UnAmerican”

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Yesterday I wrote a column in the Hill criticizing hair-triggered responses to the controversy over the sentencing recommendation in the case of Roger Stone. This included former prosecutors who did not see the need to confirm critical facts before demanding the resignation of Barr. Former Deputy Attorney General Donald Ayer called Barr, his former colleague in the Bush Administration, “unAmerican.” It is a disgraceful attack on someone who has served his country for decades with distinction. Just as many (including myself) have denounced President Donald Trump for calling opponents disloyal or traitorous, this personal attack should also be roundly denounced by all sides in this controversy.

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Diss Barr? Trump Returns To Attacking The Justice Department

Despite a public condemnation by Attorney General Bill Barr, President Donald Trump is back tweeting and atacking a wide range of Justice Department attorneys and investigations. That includes the recently resigned prosecutors in the case of Trump associate Roger Stone. These irresponsible tweets continue undermine Barr and magnify the problems for the Administration with both the courts and Congress.

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Dershowitz Claims Obama Asked For An Investigation From FBI At The Behest Of Soros

Harvard Law Professor Alan Dershowitz pulled a Giuliani on television this weekend by claiming bombshell evidence in his possession but refusing to disclose it. On Fox News, Dershowitz claimed that he has conclusive proof that Barack Obama “personally asked” the FBI to investigation someone “on behalf of George Soros,” the wealthy liberal donor. However, Dershowitz mysteriously referenced future “litigation” where all of this would be disclosed.

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Juror 1261: Was Justice Undone In The Trial Of Roger Stone

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Below is my column in the Hill newspaper on the controversy surrounding the foreperson on the Stone trial and the discovery of biased public comments made before she was called as a juror. The comments raise very serious questions about not just the inclusion of Tomeka Hart on the jury but the legitimacy of the conviction in light of her participation. Courts are extremely reluctant to set aside verdicts and often deny motions for new trials like the two filed by Stone. However, such disclosures make a mockery of the process — and ultimately the court — if undisclosed bias does not have a remedy for a defendant. No defendant can prove conclusively that such bias made the difference, but no prosecutor can prove that it did not. What remains is a dangerous element of doubt in a criminal trial.

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“Gotta love it!”: Major Controversy Erupts Over Undisclosed Alleged Bias Of Foreperson In Stone Trial [Updated]

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There is an interesting new controversy developing around the trial of Roger Stone. This one does not focus on the sentencing of Stone but his trial. New information has emerged that the foreperson of the trial has a long history of highly critical postings against President Donald Trump and his administration. Former Memphis City Schools Board President Tomeka Hart recently went public with her support of the prosecutors who resigned from the case. However, there are now questions of why Hart was allowed on the jury, let alone made the foreperson given her highly critical view of Trump and his associates before being called for jury service. Not only has Hart called Trump supporters like Stone racists but she celebrated a protest that projected profanities on the Trump hotel with the words “Gotta Love It.”

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No, Trump Did Not Commit Criminal Witness Retaliation

I recently wrote a Washington Post column explaining that, while I viewed the moves by President Donald Trump against impeachment witnesses was wrong, it was not criminal as claimed by legal analysts like CNN’s Elie Honig. Yesterday, Honig responded by arguing in a column that he and “other former prosecutors” are quite confident that the action clearly constituted the crime of witness retaliation. While Honig does not actually explain how the President’s conduct specifically violated the stated elements in the federal code, even a cursory consideration of the elements of the crime belie his assertion. Trump’s actions with regard to Vineland and Sondland would not constitute criminal witness retaliation.

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Bar Complaint Filed Against Rep. Matt Gaetz By Miami-Dade Democratic Party

I recently disagreed with North Carolina Law Professor and CNN Legal Analyst Michael Gerhardt, who declared that the entire Trump defense team would face bar charges for their defense of the President. No such bar charges have been filed but the Miami-Dade Democratic Party has filed a frivolous bar complaint against Florida Rep. Matt Gaetz (R) for his role in the storming a secure congressional facility during the closed-door hearings held in the impeachment inquiry. The complaint in my view is utterly without merit and would create a dangerous precedent for bar associations to use their authority to regulate or punish the actions of lawyers in the capacity as members of Congress.

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Trump Moves Against Impeachment Witnesses [Updated]

President Donald Trump has moved against two of the most prominent witnesses at his impeachment hearings in the House with the removal of Gordon Sondland, the U.S. Ambassador to the European Union and Lt. Col. Alexander Vindman, the top Ukraine policy officer on the National Security Counsel. There is no question that the President has a right to remove them and Vindman is not being “fired” but rather being transferred to a Defense Department post. Both ignored instructions from the White House not to appear in Congress. Yet, the timing smacks of retaliation against witnesses and the White House has not offered a full explanation of the action. Previously, a Pentagon official pledged that no retaliation against Vindman would be tolerated, but that might not include a transfer. What is particularly concerning is the removal of the twin brother of Vindman who did not testify and merely went with his brother as emotional support at the hearing.

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The Trump Verdict: Why Bad Cases Can Make Bad Law

With the exception of one vote on one article of impeachment (by Sen. Mitt Romney), the acquittal of President Donald Trump went as predicted with a party-line vote. Notably, however, the vast majority of senators, including a significant number of Republican senators, expressly rejected the core defense offered by Professor Alan Dershowitz in their statements –rejecting the position that impeachable offenses must be based on criminal allegations and does not include allegations of abuse of power. What we did not see, as discussed in this column in The Washington Post, was a bipartisan rejection of Article II.

Here is the column:

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How The House Lost The Witnesses Along With The Impeachment

Below is my column in The Hill newspaper on the continued effort to ignore the obvious and catastrophic decision of the House leadership to rush the impeachment vote by Christmas rather than complete the record against President Donald Trump. This denial continues despite the fact that, after saying that they had no time to seek witnesses or favorable court orders, the House leadership then waited a month before released the articles of impeachment. Clearly, the record would have been stronger if the House waited and sought to compel witnesses. It also would have kept control of the record and the case. I encouraged them to vote in March or April, which would have given them plenty of time to secure additional testimony and certainly a number of favorable court orders. However, recognizing this obvious blunder would take away from the narrative that the case failed only because the Republicans were protecting Trump in the Senate.

Here is the column:

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Gerhardt: The Entire White House Defense Team Will Face Bar Charges

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There have been suggestions that the White House defense team could be brought up on bar charges for their arguments in the Senate. I have previously written that such statements by Speaker Nancy Pelosi and others are vindictive and ill-informed. The White House team were effective advocates for their clients and we do not disbar lawyers for making arguments or defending individuals that we do not like. I was surprised and disappointed therefore that my fellow witness from the Trump impeachment hearing, North Carolina Law Professor and CNN Legal Analyst Michael Gerhardt joined this dubious argument on CNN yesterday. The call for ethics charges seems dangerously close to the view of Lawrence O’Donnell that Trump defenders are barred from his MSNBC program because they are all “liars.”

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Giuliani: Democrats Fear My “Physical Presence”

Rudy Giuliani has a curious response to New York Daily News reporter Chris Sommerfeldt in a late night text on the developments in the Senate. He explained that the Democrats would not call him as a witness because “[Democrats] have indicated in every way possible they are afraid of my physical presence.” It was a bizarre moment because Giuliani has been a perpetual motion machine of controversy. The House is not the only group of lawyers fearful of his presence.

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In Defense of Dershowitz: Critics Slam Harvard Professor For Ethical Representation and Intellectual Opinions

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Alan Dershowitz is hardly someone in need of the defense of others. However, there is a disturbing level of acrimony and personal attacks directed at the retired Harvard professor after he agreed to speak in defense of President Donald Trump. As I tweeted last night, I have strong disagreements with Dershowitz over his theory that impeachment articles must be based on criminal acts. However, I thought his presentation last night was outstanding. It was powerfully presented and he made some compelling points. While we disagree, it is a presentation that everyone should have watched. The shame is that few people are watching and even fewer are listening. To make matters worse, liberals (who pride themselves on supporting individual rights) are attacking Dershowitz for defending unpopular individuals like O.J. Simpson and Jeffrey Epstein. That is what criminal defense attorneys do. They represent accused and often highly unpopular individuals. It is the rankest form of attack to suggest that a lawyer defending a client is somehow tainted by the crimes alleged in the case.

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