Below is my column in The Hill newspaper on the new disclosures in the prosecution of former National Security Adviser Michael Flynn. Yesterday, the attorney hired by Judge Emmet Sullivan responded on his behalf to defend his controversial orders in the case to invite third parties to argue the merits of the motion to dismiss as well as raising his option to substitute his own criminal charge of perjury against Flynn. The Justice Department responded with a 45-page filing to a three-judge appeals court panel.
The attention will now focus on the appearance tomorrow of former Deputy Attorney General Rod Rosenstein in the Senate. For me, the most pertinent question is why this investigation continued past December and seemed to become to a search for a crime rather than the investigation of any crime or collusion with Russia.
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.
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.
There is yet another criminal allegation being raised by legal analysts against President Donald Trump. It seems that every controversial statement by Trump is immediately reframed in criminal terms by the very same experts who declared a myriad of other crimes over the last three years. The latest criminal allegation stems from Trump’s tweet that claimed Michigan’s Secretary of State “illegally” sent absentee ballots to all of the state’s voters. He then threatened to withhold federal funds in response. I criticized that tweet as dubious in its underlying authority and reckless in its implications during a pandemic. However, such objections are pathetically insufficient in the age of rage. So the tweet must be a federal crime. Once again, legal sites reported the views without a single voice opposing the dubious legal analysis. [Update: one of those referenced has responded so I updated the blog below to include his position]
The Los Angeles Times has posted a column by UCLA Law Professor and former U.S. Attorney under Bill Clinton, Harry Litman. The column that captures just how disconnected legal analysis has become in the Trump era. Litman in the column admits, to his credit, that the precedent overwhelmingly opposes a denial of motion to dismiss. However, Litman then encourages U.S. District Judge Emmet G. Sullivan to use the hearing to “make trouble” for the Justice Department — a goal disconnected from the inescapable legal precedent (and thus the judicial obligations) presented by the motion. There is a word for using hearing to gratuitously “make trouble” for the Executive Branch: judicial activism. I have previously written about the need to dismiss the Flynn case and criticized those who dismiss new evidence of wrongdoing by the prosecutors.
[Update: Professor Litman has responded on Twitter and his views are included below]
On Monday, the House Democrats filed a brief that with the Supreme Court that the House was actively pursuing new articles of impeachment against President Donald Trump including “the possible exercise of improper political influence over recent decisions made in the Roger Stone and Michael Flynn prosecutions, both of which were initiated by the special counsel.” The argument is meant to justify the continued demand for redacted grand-jury material from the now closed Special Counsel investigation into the Russian collusion investigation.
The United States Court of Appeals for the Fourth Circuit has rejected the effort by President Donald Trump to dismiss a lawsuit alleging a violation of the Emoluments Clause of the Constitution due to his accepting foreign government money through his luxury Washington hotel in Washington. I have been highly skeptical of these lawsuits, a view shared by other courts. The 9-6 opinion, below, however has been misrepresented or misunderstood by some. It is not a ruling on the merits but rather the technical standard for what is called an interlocutory appeal. It essentially blocks a Hail Mary play to shutdown the lawsuit. Nevertheless, the dissenting judges denounced the lawsuit as based on a “wholly novel and nakedly political cause of action.”
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.
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.”
In an unanimous opinion, Justice Ruth Bader Ginsburg excoriated the United States Court of Appeals for the Ninth Circuit for “an abuse of discretion” when it brought in third parties to argue the case and ruled on that basis. That approach “drastically” changed the judicial norms of having the parties present arguments. The Ninth Circuit opinion was written by A. Wallace Tashima who ruled with Marsha S. Berzon, and Andrew D. Hurwitz. Hurwitz was brought into the case after Judge Stephen Reinhardt died. Continue reading “A “Radical Transformation”: Supreme Court Unanimously Overrules The Ninth Circuit”→
Over 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.
There is something crushingly ironic in a recent letter received by former Trump counsel Michael Cohen from current Trump counsel Charles Harder. Cohen has been getting the word out that he is writing a tell-all book in his latest effort to cash in on his scandalous career. He then received a letter from Harder that he will sue Cohen if he violates . . . you guessed it . . . his nondisclosure agreement (NDA). The same grounds that Cohen used against Stormy Daniels. Speaking of Daniels, she also received mail from Harder, who is seeking hundreds of thousands of dollars for attorneys fees used to represent Trump against her (also a threat made by Cohen in prior litigation). There are two critical differences in all of this. First, unlike Cohen, Harder is a competent lawyer. Second, Harder actually has a strong case against both individuals. Continue reading “The Harder They Fall: Trump Attorney Moves Against Stormy Daniels And Michael Cohen”→