Category: Lawyering

The Senate Should Focus On What The Flynn Transcripts Do Not Contain . . . Starting With A Crime

440px-Michael_T_FlynnBelow 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.

Here is the column: Continue reading “The Senate Should Focus On What The Flynn Transcripts Do Not Contain . . . Starting With A Crime”

Two New York Attorneys Arrested For Throwing Molotov Cocktail At Police [Updated]

downloadYesterday we discussed the four arrests associated with two attacks on New York police officers using Molotov cocktails.  It is now being reported that one of the defendants arrested, Colinford Mattis, 32, is a furloughed Pryor Cashman associate.  Mattis is a graduate of New York University and Princeton University. He was reportedly arrested with a second attorney in the attack.  Mattis is accused of driving a van and passenger Urooj Rahman, 31, threw a Molotov cocktail. Rahman is reportedly a human rights lawyer but also recently lost her job. Update: The FBI now says that the two defendants sought to pass out Molotov cocktails.

Continue reading “Two New York Attorneys Arrested For Throwing Molotov Cocktail At Police [Updated]”

DOJ Closes Three Insider Trading Investigations Of U.S. Senators

US-DeptOfJustice-Seal_svgsenate_large_sealWe 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.

Continue reading “DOJ Closes Three Insider Trading Investigations Of U.S. Senators”

A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders

1280px-Emmet_G._Sullivan_2012We have been having a spirited debate over the orders of U.S. District Judge Emmet Sullivan in the case of former National Security Adviser Michael Flynn.  Now, the United States Court of Appeals for the District of Columbia has given Judge Sullivan ten days to respond to the motion for his removal.  The language is not discretionary so Sullivan will likely to have address the two controversial orders issued after the filing of the motion to dismiss.  In particular, he will have to state directly to the D.C. Circuit his understanding of his own discretion in such matters. I have maintained that the law in this areas is clear and that Sullivan has little ground upon which to deny this motion.  Continue reading “A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders”

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”

No, Trump Did Not Commit A Crime In Threatening To Withhold Funds From Michigan [Updated]

Former Clinton U.S. Attorney Calls Upon Sullivan To “Make Trouble” For The Administration [Updated]

Continue reading “Former Clinton U.S. Attorney Calls Upon Sullivan To “Make Trouble” For The Administration [Updated]”

The Perpetual Impeachment: House Democrats Tell The Supreme Court That They Are Preparing For A New Impeachment

HouseofRepSealOn 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.

Continue reading “The Perpetual Impeachment: House Democrats Tell The Supreme Court That They Are Preparing For A New Impeachment”

The Fourth Circuit Rejects Trump Appeal To Dismiss Emoluments Case

US-CourtOfAppeals-4thCircuit-SealThe 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.”

Continue reading “The Fourth Circuit Rejects Trump Appeal To Dismiss Emoluments Case”

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.

Continue reading “Logan Act Is The Last Refuge For The American Prosecutorial Scoundrel”

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]

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

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.”

Continue reading “Andrew McCabe’s Bizarre CNN Interview”

A “Radical Transformation”: Supreme Court Unanimously Overrules The Ninth Circuit

Supreme CourtIn 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”

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.

Continue reading “The Justice Department Drops Flynn Case”

The Harder They Fall: Trump Attorney Moves Against Stormy Daniels And Michael Cohen

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C-Span/YouTube Screenshot

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”

Res ipsa loquitur – The thing itself speaks