Category: Lawyering

A Leap or Perpetuating Evel? A Response To Sen. Chris Coons

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I have long respected Sen. Chris Coons (D, Del.) as a highly intelligent and effective senator.  I was surprised today to be watching Michael Smercomish (who I also respect greatly) to hear Sen. Coons following the party line in arguing implausibly that Hunter Biden is not a relevant witness in any trial despite his centrality to the Trump defense.  I previously addressed how Biden would be deemed relevant in a conventional trial and Smercomish quoted one of my Washington Post column at length to offer the opposing view. Sen. Coons responded not by addressing the relevancy argument but by dismissing such arguments as clever lawyering and “a stretch . . . a leap of logic worthy of Evel Knievel.”  I should note that this analogy was lost on my youngest son, Aidan, who immediately asked “who is Evel Knievel?” When I explained, he responded, “isn’t that a good comparison?” Continue reading “A Leap or Perpetuating Evel? A Response To Sen. Chris Coons”

Modus Operandi or Old News? Comey Under Investigation In New Leak Probe

Former FBI Director James Comey is back in the news this week after The New York Times  reported late Thursday that he is again under investigation for leaking information to the media. The Justice Department Inspector General previously found that Comey was a leaker and violated FBI policy in his handling of FBI memos, including material  containing the “code name and true identity” of a sensitive source. Now, he is again accused of leaking information. There is an element of a modus operandi in the story since the same academic Comey used in the earlier leaks is also named in this leak, Columbia Law Professor Daniel Richman.

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Pelosi’s Blunder: How The House Destroyed Its Own Case For Impeachment

Below is my column in The Hill Newspaper on the blunder by Speaker Nancy Pelosi of not submitting the impeachment case to the Senate — a mistake that now threatens not just the trial but the rules for impeachment trials.

On Sunday, Pelosi went largely unchallenged in her obviously incorrect claim that the House is still in court seeking witnesses in the impeachment. The House is litigating pre-impeachment witnesses, but has never sought to subpoena, let alone compel, key witnesses in the impeachment from John Bolton to Rudy Giuliani to others with direct knowledge of any alleged quid pro quo. Indeed, the House has done nothing for four weeks after the vote – a vote that I strongly discouraged in favor of spending a couple months seeking these witnesses and/or court orders. Now Pelosi is actually suggesting that they could still seek the witnesses while the House does nothing. It remains the most baffling blunder of the impeachment.

Here is the column:

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FISA Court Selects Lawyer Who Vehemently Denied FBI Misled FISA To Oversee FBI Reforms

The Foreign Intelligence Surveillance Court has triggered a wave of condemnations over the selection of David Kris, to oversee reforms of the FBI FISA process. Foreign Intelligence Surveillance Court (FISC) presiding Judge James Boasberg, left, appointed Kris, a lawyer that the Washington Post describes as “highly controversial.
Critics have objected that Kris writes for Lawfare, a legal site widely criticized by conservative lawyers for its left-oriented, anti-Trump positions, as well as shows like Rachel Maddow on MSNBC. That objection strikes me as attenuated and unfair. The more serious allegations however is that Kris was one of the most public advocates for rejecting allegations of FBI abuse. In a city where you can throw a stick and hit ten lawyers, FISC went to someone who insisted that allegations of abuse were nonsense and should be rejected. If the court was seeking to assure the public, it has added a new controversy for those who see a “deep state” response to reforms.

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What If Monica Actually Had Taken The Stand?

Below is my column in the Wall Street Journal on the issue of witnesses at impeachment trials and how they can have a determinative impact on the outcome of such trials. The best example remains the Senate trial of Bill Clinton and the ultimate “what if.” What if Monica Lewinsky actually took the stand in the Senate trial?

Here is the column:

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No, I Never Said Sotomayor Wasn’t Smart Enough For The Supreme Court

When I agreed to testify in the Trump impeachment hearing, I knew that that I would be attacked for my testimony. With roughly 54 pages of testimony, there would be ample areas of good-faith disagreement. The surprising thing was the tsunami of attacks for things that I did not say. The most vile was that I previously said that Justice Sonia Sotomayor “wasn’t smart enough for the Supreme Court.” That false story appears to be traced to a tweet from from another law professor, Baltimore Law Professor Garrett Epps stating “Does anybody else remember @JonathanTurley appearing on MSNBC to explain that Sonia Sotomayor didn’t have the intellect to serve on the Supreme Court?” I certainly don’t because I never said such a thing. However, Epps and an array of reporters did not feel that such a statement required a modicum of actual research. (I am giving Professor Epps the benefit of the doubt that he did not actually watch the video that he linked. If he did, he clearly chose to ignore where I clearly state a very different point about Sotomayor’s opinions while saying that she could still emerge on the Court as a great justice like Justice John Paul Stevens).

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“A Judge Would Be Disqualified”: Justice Ginsburg Again Wades Into Political Controversies In Interview

I have previously criticized Supreme Court Justice Ruth Bader Ginsburg for her continued political comments in speeches to liberal and academic groups.  While not unique on the Court, Ginsburg has repeatedly crossed the line of traditional public speaking in discussing political controversies, pending issues before the Court, and even criticizing the President. Despite repeated controversies in speaking publicly on political issues, Ginsburg remains undeterred.  Earlier this year, Ginsburg again repeated her view that sexist voters prevented Hillary Clinton from being elected president — a repeat of controversial comments in her 2017 speech. This week, Ginsburg commented on the merits of President Donald Trump’s call for a review of the Supreme Court and even criticized senators who have made public statements about the impeachment.

Indeed, the most ironic part of her commentary was Ginsburg noting how inappropriate it is for senators to be discussing their views of the merits before any actual impeachment. She insisted “if a judge said that, a judge would be disqualified from sitting on the case.” That raises a rather uncomfortable question as to what Ginsburg was doing in that very interview.

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An Apology To Carter Page

Below is my column in The Hill newspaper on what the recent Horowitz report says about the treatment of former Trump adviser Carter Page. While the media has been quick to call developments as “vindication” for figures like Comey, it is largely silent on the poor treatment shown Page and the lack of evidence against him (and supporting the Russian investigation as a whole). Page has emerged as the Richard Jewell of the Russian investigation.

Here is the column:

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Titanic Failure: What The Horowitz Report Actually Says About The Russian Investigation

I previously discussed the bizarre narrative in the media that the main takeaway from the Horowitz report was the debunking of a conspiracy theory. Below is my column in the Hill newspaper on some of the actual findings of the Horowitz report. The report shows that there was not credible evidence to maintain the investigation and that the Steele Dossier was essential to securing the FISA investigation despite repeated media statements to the contrary.

Here is the column:

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Lisa Page Sues FBI and Justice Department For Privacy Violations

Former FBI lawyer Lisa Page is suing the FBI and Department of Justice for violating the Federal Privacy Act in the release of their test messages to former FBI Counterespionage Chief Peter Strzok. President Donald Trump has made repeated and mocking references to the texts, including salacious and romantic messages between the two former FBI employees who engaged in an extramarital affair. Many of us have recoiled at the level of disclosure of this affair and particularly the President’s inappropriate taunts, including last night at a rally in Pennsylvania. The lawsuit could raise some interesting questions of the privacy affords such records, but it is unlikely to prevail.

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No, The Main Take-Away From Horowitz Was Not Debunking A “Conspiracy Theory”

I have a column out today on the Horowitz report in the Hill newspaper. As has become a common practice, the report was immediately and grotesquely misrepresented. On CNN, the takeaway was that the Inspector General “Debunks Trump conspiracy theory.” Chris Cillizza stated “That sound you just heard is the air coming out of the Trump conspiracy balloon.” It is all perfectly bizarre as are the attacks on both Attorney General Bill Barr and U.S. Attorney John Durham for their disagreement on that one finding.

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Report: Barr Has Moved Against Giuliani In Meetings With President Trump

Attorney General William Barr has reportedly counseled President Donald Trump that his personal lawyer Rudy Giuliani has served him poorly and should be dropped. The Washington Post reported Sunday that Barr has directly raised with Trump the need for him to recognize what a liability Giuliani has become. It is an interesting story because Giuliani has not only become inappropriately intertwined with State Department business but also Justice Department business. It is not clear if Secretary of State Mike Pompeo has made any such objections, but the Post is reporting that various sources have confirmed that Barr has moved against Giuliani.

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Musk Defamation Trial Continues With Discussion Of His Wealth Before The Jury

The defamation trial against Elon Musk is unfolding in Los Angeles, but one story caught my eye from a litigation perspective. Yesterday, the federal judge in Unsworth v. Musk, 18-cv-08048, overruled an objection and ordered Musk to tell the jury how much he is worth. It was a surprising and troubling bench decision in my view. Most judges bar such questions to avoid prejudicing a jury. When a jury hears that someone is worth $20 billion, it can make a verdict and award seem like chump change in the jury room. While I greatly respect his brilliance and accomplishments, I have little sympathy for Musk in the case. He is being sued for a tweet calling a diver a “pedo guy” after he criticized Musk’s effort to rescue trapped kids in a Thai cave. Musk seems to be relying on a Trump-like defense that he just let’s it rip on Twitter and it was a flippant moment.

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Adam Schiff’s Capacious Definition of Bribery Was Tried in 1787

The Trial of Warren Hastings

Below is my column in the Wall Street Journal on case that may be looming in the background of tomorrow’s opening hearing in the House Judiciary Committee on the impeachment of President Donald J. Trump.

I have been called to testify at the hearing. With only a few days to prepare, I will be completing my testimony today and I will hopefully post it before leaving for the hearing in the morning. This is a daunting but not unfamiliar challenge as an academic. It has been 20 years since I testified at the Clinton impeachment hearing with other constitutional and historical experts on this same question. It has been 10 years since I served as the last lead counsel (with Dan Schwartz) in the impeachment trial of Judge Thomas Porteous. The hearing will begin at 10:00 am in the Longworth House Office Building.

Here is the column:

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Giuliani: I Am Not Worried Because “I Have Insurance”

I have repeatedly criticized President Donald Trump’s counsel Rudy Giuliani for his record of rampage as counsel. Even before the ruinous work in the Ukraine came to light, Giuliani has assembled a long line of harmful statements. Now, in what may be the worst possible way to respond to a question whether he is concerned that Trump will throw him under the proverbial bus, Giuliani has said that he is not worried because “I have insurance.” It is a statement that raises obvious images of what the Russians call kompromat, or “compromising material.” Whether a joke or serious, it is again a remarkably dim-witted response at the height of an impeachment process.

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