In a murder that has shocked the nation, the son of federal judge Esther Salas was killed and her husband wounded in their home in North Brunswick, New Jersey. Daniel Anderl, 20, was a student at Catholic University with hopes to go to law school. His father is a criminal defense attorney. Such attacks on federal judges are thankfully rare and there is much speculation about high-profile cases that Judge Salas has handled or taken on recently, including a lawsuit related to Jeffrey Epstein and another past case involving “The Real Housewives of New Jersey” star Teresa Giudice. While the crime had the markings of premeditation and even professional elements, police are looking into a body found after the shooting as possibly linked. The apparent suicide in another town involved a lawyer who was being contacted reportedly about a connection to the gun recovered near the scene.
I recently received a letter contesting my statements concerning Attorney General Bill Barr in columns (here and here and here and here) and congressional testimony (here and here). The letter is from Ralph Nader, Lou Fisher, and Bruce Fein. I have known all three signatories for many years and I have the utmost respect for them. They offer detailed and thoughtful disagreements with my past statements and the record of Attorney General Bill Barr. I asked them if they would allow me to share their arguments with the blog and they have agreed to do so. As with the prior posting of Professor Morrison, I strongly encourage you to consider the analysis from three of the most influential minds in Washington.
These are figures who require little introduction. They are well known throughout the world for their contributions to the law and public policy. Ralph Nader is as legendary figure who has fought his entire life for consumer protection, environmental protection and good government. He has run for president repeatedly (indeed I voted for him) and is widely viewed as one of the most influential figures in the world on public policy. Lou Fisher spent four decades at the Congressional Research Service and is widely regarded as one of the most influential figures in the shaping of congressional legislation and policies. He is widely regarded as one of the foremost experts on constitutional and congressional issues. Bruce Fein was a high ranking Justice Department figure in the Reagan Administration and has been one of the most influential conservative voices in print and television for decades. He is known for his independent and principled analysis of legal and constitutional issues.
As I stated in Attorney General Barr’s confirmation, he comes to this position with long-established and robust views of executive privilege and powers. While I have long disagreed with him on many of these issues, I view many of the current controversies to reflect policy and interpretative differences, not ethical or criminal or impeachable misconduct. I do not agree with presumptions made about his improper motivations or designs in carrying out his duties, for a second time, as Attorney General of the United States. Despite my many friends on the other side, my view has not changed. Nevertheless, people of good-faith can disagree and that is precisely what is offered by Messrs. Nader, Fisher, and Fein (sounds like a great law firm!)
Here is their letter for your consideration:
Missouri GOP Sen. Josh Hawley has called upon Attorney General Bill Barr to launch a federal civil rights investigation of the St. Louis couple who wielded guns outside of their house during a protest in their gated community. I have previously written about the possible charges against Mark and Patricia McCloskey and expressed my skepticism over the apparent effort of St. Louis Circuit Attorney Kim Gardner to find a criminal charge. However, Attorney General Barr should decline this request from Sen. Hawley. There is no civil rights violation in this investigation. Indeed, while I thought the charges could be defeated in trial or on appeal, I previously wrote that the vague criminal provisions could be used to bring a charge. The issue turns on how the guns were used. While I find the criminal provisions to be vague and the application in this case to be unwarranted, it is not a civil rights violation to advance such an interpretation of the law.
Many years ago, I had the pleasure of speaking at Tsinghua University, considered one of the best educational institutions in China. I was impressed as faculty at the university struggled to remain intellectually active under the repressive controls of the Communist regime. It is a perilous existence as academics fear that they will write anything that annoys the government. Now, one of the best known law professors in China, Xu Zhangrun, has been arrested. Xu predicted the crackdown after he recently wrote a piece criticizing the government’s response to the coronavirus. His colleagues have been forced into silence at the risk of their own arrest. The arrest comes at a time when many are concerned about the loss of free speech in this country, not by the government but private companies and universities. I have chastised faculty around the country for their silence in the face of the increasing intolerance for opposing views on campuses and actions against professors raising dissenting views of the current protests. Indeed, many have joined in the call for such punitive measures. Xu is an example of the courage that academics in places like China have shown in the face of imminent threats to their liberty and even their lives.
In a surprising move, Ghislaine Maxwell, the British heiress and confidante to the late financier Jeffrey Epstein, has been arrested in New Hampshire. Maxwell’s arrest could have a ripple effect on both criminal and civil matters ranging from the still uncertain status of Prince Andrew to a number of defamation lawsuits. One of Maxwell’s principal accuser was Virginia Roberts Giuffre who has filed lawsuits against Maxwell as well as figures like Harvard Professor Alan Dershowitz. It appears that the charges derive from the U.S. Attorney for the Southern District of New York, another indication that the recent controversy of the replacement of the U.S. Attorney has not impacted underlying investigations.
Two lawyers in St. Louis are in the middle of a firestorm after they were shown outside of their house with guns in a confrontation with protesters en route to the nearby house of Mayor Lyda Krewson. Mark and Patricia McCloskey are shown aiming their weapons at the protestors, including Mark McCloskey’s assault-style rifle. St. Louis Circuit Attorney Kim Gardner has publicly declared that she is looking for criminal charges to bring against the two lawyers. That has led to many in the criminal defense field (including many who reached out to me) to speculate on what charges she might bring under these facts. While many have suggested that this would be a slam dunk prosecution or that the fact easily satisfy criminal definitions, it may be easier to get a charge than a sustainable conviction.
This afternoon, I am testifying on the hearing on the controversy surrounding the clearing of Lafayette Park on June 1, 2020. I was called to appear to address the underlying legal and constitutional standards governing such mass demonstrations. For roughly 14 years, I was one of the lead counsels in the World Bank litigation that helped establish guidelines and case law governing such operations. I have been critical of the force used to clear the park as well as the attack on a team of Australian journalists covered the protests.
The operation to clear the Park began two days before with the plan to install fencing. By Monday, a small barrier was in place around the park itself and the clearing operation was to push back the crowd to a perimeter to allow the higher fencing to be installed beyond the range of debris or objects. The crowd was pushed back to I St. from H St. by the line of officers. (The hearing title and the testimony refers to the “Lafayette Park” or “Lafayette Square Park” generally. In fact, the immediate park was closed off and we are discussing the operation to clear the area for the installation of the higher fence).
As I state in the testimony, I believe the order to clear the area would be found lawful. It is the level of force (and a charging of the line of officers) that is likely to be the focus of any court. I still do not see the need for this level of force in the use of batons and pepper spray.
I have attached my testimony below.
The hearing went until after 2 pm.
Lisa Bloom has struggled for the last few years with what was a carefully maintained media image. There was the dust up with her former client Kathy Griffin. She then broke from her client Harvey Weinstein in a public reversal. Then there was her public statement that she believed that Joe Biden was a rapist who continues to lie about his crime but that she would still support him. Now she is in the middle of litigation where she is accused of preventing families of four special needs children from getting settlement funds because she wanted a cut. They insist that she abandoned them and never had a fee agreement.
In an extraordinarily rare action, the United States Court of Appeals for the District of Columbia has ordered the dismissal of the case against former National Security Adviser Michael Flynn. The mandamus order could well be unique and was based on clear disagreement with the actions of U.S. District Court Judge Emmet Sullivan along many of the lines that I previously discussed in columns (here and here and here and here and here). Short of an order to remove Sullivan, this is the most stinging possible rejection of the prior orders and conduct by the Court. I have a column in USA Today on the decision.
Attorney General William Barr announced that Geoffrey Berman will be stepping down as the U.S. Attorney in Manhattan. That clearly came as a surprise to Berman who dashed off a blistering response that he is neither resigning nor stepping down until a replacement is confirmed by the United States Senate. Berman could now be fired, but the move by Barr raises legitimate issues for congressional investigation since Berman has been at the forefront of the investigation into Trump associates, including an ongoing investigation into Trump lawyer Rudy Giuliani’s business activities. The sudden late Friday replacement only added to those concerns and Barr needs to address these questions fully and quickly. This is a very serious matter if Berman is being canned due to his investigations, particularly given President Donald Trump’s continual criticism of those investigations. Update: As predicted, Trump has now fired Berman and Berman has agreed to leave immediately.
Last year, in columns and testimony, I chastised the Democrats for the shortest investigation on the narrowest grounds with the thinnest record of any presidential impeachment in history. The insistence of impeaching by Christmas doomed any chances of a compelling impeachment case. It appears now that one person agrees with that assessment: former National Security Adviser John Bolton. I referenced Bolton and his upcoming book as one of the reason why a little more time could vastly improve and expand the House case. Bolton said that he simply wanted a court to refer the privilege claim, which could have been accomplished easily in the time wasted by the House (including the long delay in sending the articles of impeachment to the Senate). In response, the Democratic leadership is lashing out at Bolton for refusing to come forward despite his offer to do so after a federal judge heard the privilege claim.
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.
Yesterday 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.