Yesterday, I addressed arguments that the appointment of Matt Whitaker as Acting Attorney General violates federal law. The arguments based on the Federal Vacancies Reform Act, in my view, are unpersuasive. As I noted, however, there remains a different and more fundamental question of whether the Act itself is unconstitutional by allowing an official without Senate confirmation to assume, even temporarily, the office of a “principal officer.” If standing can be found to challenge the Act on that basis, the constitutional arguments are compelling. The constitutional question could be difficult to litigate if a nomination is made in January. However, these constitutional concerns again raise the logic of firing Jeff Sessions immediately after the election as opposed to having him serve until the confirmation of his successor. Nevertheless, this is an issue that is somewhat untested in the courts and challengers would need to establish standing as well as raise a “ripe” issue to argue that Whitaker is lawful under the Act but the Act is unconstitutional under Article II.
Today I have two columns in USA Today and The Hill on the sacking of Jeff Sessions and appointment of Chief of Staff Matthew Whitaker as Acting Attorney General. The Hill column challenges arguments that Whitaker must recuse himself. However, this morning some members and commentators have declared that Whitaker cannot serve as an Acting Attorney General under federal law. I have to disagree. While not getting into the merits of the selection, it seems clear to me that, under 5 U.S.C. 3345, that Whitaker does indeed qualify. (This of course does not address the long-standing debate over the constitutionality of such laws. A challenge can be made under the Appointment Clause of the Constitution, mandating that a “principal officer” in the federal government may not be appointed without Senate confirmation).
Conspiracy theorists Jacob Wohl and Jack Burkman, a conservative lobbyist and radio host, are outspoken supporters of President Donald Trump and called reporters to come to a Holiday Inn in Washington to hear from a woman who would allegedly accuse Special Counsel Robert Mueller of sexual misconduct. Previously, Mueller referred an allegation to the FBI that women were promised money to accuse him of wrongdoing. With the no show of their accuser, Wohl and Burkman could well be looking at both criminal and civil liability.
As with so many constitutional and political disputes, the renewed controversy over the 14th Amendment has both sides claiming degrees of clarity and certainty that belied by a long and convoluted historical record. I have written and spoken this week about the arguments on both sides of this issue — a debate that has raged for 150 years. Frankly, I believe a court ruling would be welcomed to bring clarity and closure to the issue. The plain meaning of the 14th Amendment supports unlimited birthright citizenship and that is likely where the courts would come out on the issue. Nevertheless, from the time of ratification, there has been a debate over that interpretation with many Democratic and Republican members arguing for decades that the matter is left to Congress. For decades, many have held to the belief that either the14th Amendment leaves the matter to Congress or limits the right to birthright citizenship. Continue reading “Interpreting the Fourteenth Amendment: The Long and Convoluted Record on Birthright Citizenship”
Below is my column in The Hill newspaper on the surprising invocation of spousal privilege by Nellie Our to refuse to answer questions about her communications with her husband, Justice Department official Bruce Ohr. While the privilege remains an important protection, this invocation raises serious questions about its use where a husband and wife mix marital and professional relationships.
Judicial Watch has filed a bar complaint against counsel for Dr. Christine Blasey Ford. The complaint follows the issue raised earlier on this blog on the statement made by Ford that she was never told that the Committee had offered to fly to California. Attorneys Debra Katz, Lisa Banks, and Michael Bromwich deny the allegation and say that Ford was fully informed. These are very accomplished lawyers and I am inclined to believe them. That however raises serious questions about Ford’s sworn testimony and the attorneys offer a rather tortured explanation of the conflict. Continue reading “Bar Complaint Filed Against Counsel For Dr. Christine Blasey Ford”
Below is my column in The Hill newspaper on recent stories indicating that top Justice Department officials raised the recusal of Deputy Attorney General Rod Rosenstein back in June 2017. I first raised Rosenstein’s recusal in June and August of that year when the Mueller investigation began based on his role in the firing of James Comey and I have repeatedly called for the recusal since then (here and here and here). Unless Mueller has told Rosenstein that he does not consider obstruction to be a serious matter for criminal investigation in this context, it is difficult to see how Rosenstein can continue. Indeed, even if Mueller rejects obstruction theories, Rosenstein should not have continued as his superior in the investigation while that matter was explored in compliance with the mandate given Mueller.
Here is the column:
Washington’s Supreme Court unanimously struck down the state’s death penalty Thursday based on the way that it has been used in an arbitrary and racially discriminatory manner. It was a surprising basis since usually capital punishment is rejected as cruel and unusual punishment. It is the punishment, not the imposition of the punishment, that is the common argument against executions. Continue reading “Washington State Strikes Down The Death Penalty As Racially Biased and Arbitrary”
In 2010, I (and others) criticized the Democratic leadership (including then Majority Leader Harry Reid and many of the continuing Democratic senators) for their use of the “nuclear option” in curtailing the power of the filibuster. I was equally critical of Republican leaders who previously suggested such a course of action. The Democrats acted with little concern that they might ever be in the minority and need this critical power. They muscled through the Affordable Care Act on a marginal vote that cost various members their seats and passed a highly flawed bill that was plagued by problems of bad drafting and poor planning. Moreover, they secured relatively few confirmations to federal office. The result was the final demise of the filibuster for Supreme Court nominees when the Republicans took power. The result for the Democrats is Justice Brett Kavanaugh, who was confirmed by a 50 to 48 vote. Continue reading “A Bill Comes Due: Reid’s Folly Becomes The Democratic Nightmare”
As I have written previously, I have long been a huge admirer of former Supreme Court Associate Justice John Paul Stevens — not just for being a fellow Cubs fan. However, I was surprised to see that Stevens broke a long-standing uwritten rule of former and current justices not to speak on pending nominations or confirmations. According to The Palm Beach Post, Stevens spoke publicly at an event with a retirement group that Kavanaugh should not be confirmed. The event was described as “closed” so it is not clear that Stevens realized that he would be quoted, but it was obviously a large crowd setting. Stevens said that the anger and language used by Kavanaugh raises serious questions of his temperament. Continue reading “John Paul Stevens: Don’t Confirm Brett Kavanaugh”
I have the honor of addressing the Federal Bar Association (Chicago) at its annual meeting today. It is a particular pleasure to come to Chicago and spend time with my 91 year old mother and siblings. I was able to watch the Blackhawks on television with my mom last night in the first game of the season. Today, I will be speaking on the Supreme Court and the unfolding Kavanaugh nomination. Continue reading “Turley Addresses Federal Bar Association In Chicago”
Yesterday’s Kavanaugh hearing left many questions on both sides, including the ultimate question of the alleged attempted rape of Dr. Christine Blasey Ford. However, for lawyers, one exchange sticks out from a professional standpoint. Ford was questioned why she delayed the hearing due to her alleged fear of flying and, more importantly, why she did not simply meet with committee staff in California. Ford admitted that, while she does not like to fly, she does in fact routinely fly around the world, including frequent trips to nearby Delaware. The most striking statement however was the suggestion that she was never told by counsel that she did not have to fly to Washington and the Committee was ready to fly to her — a prospect that she said she would have welcomed. That left a lingering question of whether her counsel did not tell her of a material offer or whether she misrepresented the reason for her delay in speaking to the Committee.
Below is my column in the Hill newspaper of the New York Times story alleging that Deputy Attorney General Rod Rosenstein spoke to this staff near the start of his tenure about secretly taping President Donald Trump and organizing a cabinet effort to oust Trump through the Twenty-Fifth Amendment. Rosenstein denies the accuracy of the story and some have said that he discussed the possibility in jest. The New York Times has responded by saying that it was clear that the comments were made seriously and not in jest.
It is still not clear what Trump will do despite many (including myself) arguing that he should not fire Rosenstein. On Sunday, however, Trump told Geraldo Rivera that this was ultimately the fault of Attorney General Jeff Sessions (who selected Rosenstein) and that “we will make a determination” about what to do about the story.
Below is my column in USA Today on the upcoming hearing on the allegations of Dr. Christine Blasey Ford against Judge Bret Kavanaugh. There has been a strange disconnect as Democrats denounce Republicans for prejudging Ford or denying her an impartial hearing while they announced in advance that they believe her — and by extension they do not believe Kavanaugh. While the Senate is not a court of law, both sides recognize that they are supposed to afford witnesses a fair and unbiased hearing, particularly when the subject is such a serious allegation as attempted rape.
Below is my column in the Hill newspaper on the demand of Dr. Christine Blasey Ford that the FBI investigate her allegation of attempted rape against Judge Brett Kavanaugh when they were high school students. Ford has been given the opportunity to present her allegations before the Senate, which delayed its Committee vote on the confirmation to the Supreme Court. She can certainly refuse to testify. However, neither the Senate nor the FBI customarily strikes such a quid pro quo agreement for testimony. Ford can testify or not testify but, if she wants her allegations to be considered, she cannot set conditions on the Senate for such testimony.
It appears that Ford is reversing her latest position and may testify next week but not on Monday and only if the Senate can demonstrate that the hearing will be fair. In the meantime, the Senate is rumored to be preparing for a female lawyer to question Ford. That is not necessarily good news. A female lawyer may have less qualms about pressing Ford on inconsistencies than a male Senate just a few weeks away from an election. If Ford does not testify, the Republicans can treat her allegations as unproven and unsupported — and move toward a final vote.
Here is the column: