This afternoon I have the pleasure of joining a distinguished panel to speak on the Supreme Court at the University of Southern California’s Gould School of Law. The event is part of the LACBA Business Law Section 2020 Virtual Institute for Corporate Counsel and will also include Michael J. Gerhardt of UNC School of Law and Pamela S. Karlan of Stanford Law School who testified with me during the Trump impeachment hearing. It will also include Beth S. Brinkmann of Covington & Burling LLP.
We have been discussing calls to pack the Supreme Court and President-Elect Joe Biden pledging to assemble a commission of experts to fundamentally change the Supreme Court after it added another conservative justice to the majority. Boston College Law Professor Kent Greenfield is already putting forward one such proposal: just replace the Supreme Court on constitutional questions. Greenfield calls for the establishment of a constitutional court that would strip the Supreme Court of the ability to rule on such question because “the Supreme Court needs a breather.” That “breath” however only became a perceived need for many academics when the conservative conservative on the Court grew to 6-3. Continue reading ““The Supreme Court Needs A Breather”: Law Professor Calls For Replacement of Supreme Court With A “Specialized Court” For Constitutional Questions”
Former Trump campaign aide Carter Page on Friday has filed a $75 million lawsuit against the Federal Bureau of Investigation (FBI) and former high-ranking officials, including former FBI Director James Comey, and Andrew McCabe. The complaint includes eight claims that range from violations to the Foreign Intelligence Surveillance Act (FISA), Federal Tort Claims Act, a Bivens claim, and Privacy Act. It is very well written, but it will be challenging given the discretionary authority of justice officials in some of these actions. For full disclosure, I previously discussed Page’s case with both Page and his counsel (particularly after a column on his case). I have been a critic of his targeting for years and have spoken with Page on the investigation. I view Page as a victim of an abusive federal investigation and ideally he should be afforded relief for his treatment. Federal case law however presents barriers for people in his position. If he were to prevail, it could create important precedent protecting citizens and civil liberties for the future.
President Donald Trump is reportedly considering a pardon for his former National Security Adviser Michael Flynn this week. As someone who has long opposed Trump’s pardons of Trump associates like Roger Stone and Joe Arpaio, I do not come easily to the idea of pardon for someone like Flynn. However, the strongest case for a pardon for Flynn was not made by his lawyers as much as his judge, the Honorable Emmet Sullivan. Sullivan’s continued controversial actions in the case could be cited as a credible, if not a compelling basis, for a pardon of Flynn. Continue reading “The Best Case For A Flynn Pardon May Be The Conduct Of The Court Rather Than The Defendant”
We have been discussing the campaign of harassment and threats against Republican lawyers to get them to drop election challenges. New Jersey Democratic Rep. Bill Pascrell expanded that campaign this week with a malicious and frivolous demand for New York and other states to disbar roughly two dozen lawyers for representing Trump, the Republican party, or the Trump campaign in the litigation. While Democratic members and the media discuss attacks on democracy and the rule of law, they appear to have little problem with campaigns to threaten and harass both lawyers and legislators for raising questions about the election.
We have been discussing the campaign of The Lincoln Project and others to harass and abuse lawyers who represent the Trump campaign or other parties bringing election challenges. Similar campaigns have targeted election officials who object to counting irregularities. Now, the Michigan Attorney General and others are suggesting that Republicans who oppose certification or even meet with President Donald Trump on the issue could be criminally investigated or charged. Once again, the media is silent on this clearly abusive use of the criminal code target members of the opposing party in their raising objections under state law.
Just as you thought that the 2020 election could not get more bizarre, the controversy in Wayne County over the certification of the election took a new turn on Wednesday after two Republicans — Monica Palmer and William C. Hartmann, on the Wayne County Board of Canvassers sought to rescind their votes to certify. They claim that they were coerced by threats against them and their families by Democratic voters. The threats against Palmer and Hartmann are all-too-familiar in an election where Democratic members are calling for blacklists and others denounce any questioning of the Biden victory as akin to “Holocaust denial.” The Lincoln Project has led a national effort to harass any lawyers who represent Republicans or the Trump campaign. While it will be difficult to rescind such a vote, the silence in the media and from Democratic leaders on this harassment is chilling. Indeed, Democratic leaders have joined in the personal attacks. Continue reading “Two Republican Michigan Officials Attempt To Rescind Certifications Of Election Results”
Attorney Bryan Lee Simmons, 50, has been sentenced to 48 months in federal prison for conspiring to distribute methamphetamine. What is most striking is that Simmons cannot engage in the practice of law for three years. However, while unlikely to resume practicing in that time, it is a striking contrast to the alleged misconduct.
From July 2019 to August 2019, Simmons was part of a conspiracy to distribute methamphetamine in the Cass County Jail. He used attorney-client meetings to distribute the drugs while, on at least one occasion, traveling with a Colt MK IV .45 caliber pistol.
The plea agreement will result in the dismissal of a number of counts including two linked to the weapon.
Since his sentence is for four years, the three year bar on practicing law is likely to be easily satisfied. What would be interesting is whether advising other inmates as a “jailhouse lawyer” would be included. That is not necessarily “practicing law” since he is not filing papers or standing in a formal representational capacity. Moreover, he is free to represent himself in filings as an individual.
Below is my column in The Hill on the successful campaign that has forced firms to drop Donald Trump or the Republican Party as clients in the ongoing litigation over the 2020 election. Notably, this campaign started soon after the election was called for President-Elect Joe Biden.
We have been discussing how the celebration of Joe Biden’s election as a “unifying” and “healing” moment has been lost on many who are calling for blacklists and retaliatory actions against anyone viewed as “complicit” in the Trump period. Indeed, for years, I have been writing about a rising McCarthyism in our country and the growing threat to both free speech and academic freedom. This hateful or unhinged rhetoric has on occasion come from law professors, but most academics have retained a modicum of restraint and tolerance. For that reason, it was disappointing to read a bizarre attack from University of Colorado Law Professor Paul Campus who compared my discussion of possible voting irregularities to Holocaust denial.
Justice Sam Alito is making headlines after his speech last night as the keynote at this year’s all-virtual Federalist Society National Lawyers Convention. Alito slammed pandemic measures and attacks on free speech in his remarks to the Convention, including the crackdown on “unfashionable views” in our society. I happen to agree with some of his points, but I have great reservations over a justice speaking on issues that are likely to come before him on the Court. Indeed, I have long been a critic of the Supreme Court justices engaging in public appearances where they hold forth on contemporary issues. I have been particularly critical of the late Justice Antonin Scalia and Justice Ruth Bader Ginsburg who clearly relished appearances before ideologically supportive groups. Continue reading ““Unfashionable Views”: Justice Alito Speaks Out Against Pandemic Restrictions, Contraception Laws, and Other Controversies”
I have been commenting on the ongoing challenges to the presidential election. While I have not seen evidence of systemic voter fraud, there are hundreds of affidavits alleging localized fraud, including cases of deceased persons voting. The challenges should be heard and the evidence should be examined. However, the most worrisome response came out of Michigan this week where Michigan Attorney General Dana Nessel’s Office of Public Information threatened a website, Big League Politics, with criminal prosecution if it did not take down a video of alleged voting fraud. The video may indeed be misleading or false. However, the threat of criminal prosecution by the Michigan Attorney General’s office is a chilling escalation of the crackdown on free speech in this country and the calls for censorship on the Internet.
The Lincoln Project is airing a commercial today celebrating the end of the politics of division and personal attacks as Twitter removed a tweet (with a skull-and-crossbones emoji) from The Lincoln Project that sought to target lawyers simply because they represent the Trump campaign. The crushing irony is magnified by the fact that Rep. Alexandria Ocasio-Cortez (D-NY) has called for liberals to start to assemble enemy lists of people who were “complicit” in the Trump Administration and the first entry was . . . you guessed it … the Republicans who founded the Lincoln Project. It is the reality of our doublespeak politics. Call it skull-and-crossbones civility.
When a detective on October 20th spotted a man who looked like a serial bank robber being pursued by police, they quickly deduced that they had the right man from prepared notes for bank tellers and a ball-peen hammer in his waistband. They also learned that the suspect, Aaron Patrick Honaker, 41, is a lawyer who previously represented parties in business and creditor cases. Continue reading “Business Litigator Charged As Serial Bank Robber In Florida”
Minority Leaders Chuck Schumer and various commentators have called for Amy Coney Barrett to recuse herself from any decision on the 2020 general election. There is no reason for such a recusal, which would be unprecedented in these circumstances. Moreover, it would establish a dangerous precedent of nominees securing their positions by promising results or positions if confirmed by the Senate. Continue reading “No, Barrett Should Not Recuse Herself From Any Election Challenge”