Category: Lawyering

Lawyer’s Social Media Comments Triggers Free Speech Fight In Kentucky

Unknown-1There is a free speech controversy brewing in Louisville, Kentucky where a lawyer is facing criminal charges for allegedly threatening Kentucky governor Any Beshear. James Gregory Troutman, 53, made uniquely stupid and disturbing statements opposing Beshear’s lockdown. However, the comments could easily be understood as hyperbolic and hateful but not actually threatening.  For the free speech community, these terroristic threat laws are written so broadly that they threaten political speech.  This could well be such a case where stupidity is being treated as criminality. Continue reading “Lawyer’s Social Media Comments Triggers Free Speech Fight In Kentucky”

Schiff and Democratic Leaders Push For IG Investigation Of Bill Barr Over Comments

440px-William_BarrThere  is an interesting fight brewing on the Hill after House Intelligence Committee Chairman Adam Schiff and Judiciary Committee Chairman Jerrold Nadler called for the Justice Department inspector general to investigate Attorney General Bill Barr over his comments on the firing of the intelligence community watchdog, Intelligence Community Inspector General Michael Atkinson.  What is curious is that Barr justified the firing on the very basis that I previously raised in a blog column, While I was highly critical of the move, I noted that termination would have been justified if Atkinson continued to assert that he would not follow Justice Department interpretations of federal law.  However, President Donald Trump made clear that he fired Atkinson for the worst possible reason: the merits of the Ukrainian allegations reported to Congress.  So Schiff and Nadler are calling for an investigation into Barr over his arguing what would be legitimate grounds for a termination? It is not clear to me what the IG is supposed to do with such a request.  Sen. Dianne Feinstein, D-Calif., and Sen. Mark Warner, D-Va., have also requested a review of Barr’s comments. (For full disclosure, I testified in favor of Barr’s confirmation before the Senate Judiciary Committee).

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“How Hard Can It Be?”: Ohio Democratic Representative Pledges To File Referral For Charges Of Crimes Against Humanity By Trump

Ohio House of Representatives

Ohio state Rep. Tavia Galonski (D) continues to garner extensive national coverage over her pledge to file a referral with the Hague for charges of crimes against humanity by President Donald Trump over his handling of the pandemic. Yesterday, she reaffirmed with NBC News that she would be making a referral “tomorrow.” Galonski is specifically citing Trump’s promotion of the antimalarial drug hydroxychloroquine as a treatment despite the absence of conclusive studies on its benefits. While Galonski originally said that she had “no idea” how to file such a referral, she has asked “how hard can it be?” The answer is extremely hard if you have, as here, an entirely frivolous basis for a referral.

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Virtual Democracy: Congress and The Supreme Court Need To Move Into The Virtual Space

Below is my column in The Hill newspaper on the baffling reluctance of Congress and the Supreme Court to allow for remote or distance technology as an alternative to physical sessions. Democracy at a distance is better than no democracy at all in times of emergency. President Donald Trump was asked about Congress allowing remote voting given the various Senators who are now in quarantine. He thought that it was a good idea but that there may be constitutional barriers. The greatest barriers, particularly for the Supreme Court, remain cultural not constitutional.

Here is the column:

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MSNBC Legal Analyst: Trump Must Be Investigated For Negligent Homicide And Manslaughter

YouTube Screenshot/MSNBC

We recently discussed how an American University professor called for the impeachment of President Donald Trump over his handling of the coronavirus outbreak. Not to be outdone, MSNBC legal analyst Glenn Kirschner is now declaring that Trump should be charged with negligent homicide over his conduct. While insisting that, as a former prosecutor, this is something he “actually know[s] too much about,” Kirschner proceeds to utterly misrepresent the controlling law and definitions of such a criminal case. While I come from the other perspective of a criminal defense attorney, the argument being put forward by the MSNBC legal analyst is devoid of any basis in the law. It does however play well for those who believe impeachment or prosecution are entirely fluid and relative concepts when it comes to Trump.

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Free The Trolls: The Justice Department Moves To Drop Major Mueller Case Against Russian-Linked Companies

It appears that trolls are enjoying St. Patrick’s Day as much as Leprechauns. The Justice Department shocked many by dropping the matinee case of former Special Counsel Robert Mueller against two Russian companies accused of funding the “troll farms” in the 2016 election. Many critics have charged that the trolling operation was laughingly ineffective and clumsy. Moreover, the evidence against the companies, including Concord Management and Consulting LLC and Concord Catering, was questioned. The prosecutors, while defending the original charges, moved to dismiss the case because they viewed the trial as threatening national security secrets. That claim seemed like more of a spin in a case that never seemed to materialize into hard evidence to support these charges. Update: The company has announced that it will sue the U.S. government for billions in damages — a move that will once again raise this same information for trial.

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The Death of Irony: How A Judge’s Attack On Judicial Bias Backfired

Below is my column in the Hill newspaper on the recent criticism of the Roberts Court by a federal district judge. The law review article makes a stronger case for critics who view some judges are part of a deep bench movement against Trump. I do not see that pattern but I do view Judge Lynn Adelman as well outside of the navigational beacons for public commentary by federal judges.

Here is the column:

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No, Schumer Did Not Violate Legal Ethics In His Threat Against The Court

I previously wrote about the highly improper threats made against the Supreme Court by Senate Minority Leader Chuck Schumer (D., N.Y.). Schumer is now facing both complaints in the Senate and in the New York bar. The Senate has a legitimate concern about a member threatening the Court with retaliation if it does not rule in the way that he favors. However, as my column noted, Senator Whitehouse and others have made the same type of threats. Any censure or sanction remains a matter for the Senate but it would have to distinguish between Schumer’s statements and past hyperbolic statements of other senators. My main concern is the the bar complaint against Schumer. Despite my stated and strong disapproval of his threats against Associate Justice Neil Gorsuch and Brett Kavanaugh, I do not believe that this is a matter for the New York bar. Indeed, I view the effort as a threat to protected political speech.

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FBI Agents Connected To Carter Page Surveillance Barred From FISA Process

In a further demonstration of the abuses that led to the surveillance of Trump officials, the Foreign Intelligence Surveillance Act (FISA) court has barred FBI officials involved in the wiretapping of former Trump campaign adviser Carter Page from appearing before the court. in rebuke that exceeded the remedial recommendations made by the independent monitor recently appointed by the court. Notably, this goes beyond the recommendations for David Kris, the highly controversial choice as an independent monitor of reforms. The order of Judge Boasberg further belies arguments that the surveillance of the Trump-relate figures was well-based and justified, as I discussed in any earlier column.

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Trump Continues To Attack Sessions Over His Ethical Recusal

 President Donald Trump has continued his attacks on former Attorney General Jeff Sessions for following the advice of ethics experts in recusing himself from the Russian investigation. I was one of those favoring recusal as the proper decision for Sessions. He waited until the Justice Department experts made that recommendation and then took the proper step of recusal. Taking such ethical advice and removing oneself in the interests of his Department is neither weak nor stupid, as the President suggests. In a prior column, I criticized the sacking of Sessions and this attack only magnifies those concerns.

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Stone Moves To Remove Jackson From Case [Updated]

Roger Stone’s defense team moved to force the recusal of Judge Amy Berman Jackson from the case for bias. These motions have a very low success rate and this particular motion likely has an even lower likelihood of success. Jackson is a respected and experience judge. I actually was taken aback by a couple of her comments about the case but courts of appeal are extremely reluctant to force such recusals. Moreover, the main thrust of the motion is a statement about the jury which would be viewed as virtually standardized language for courts. Update: the Defense motion is available below.

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Ex-Rep Confirms His Proposal Of A Pardon For Assange To Clear The Russians In The DNC Hack [Updated]

This week, many were surprised by the disclosure made by the lawyers for Wikileaks founder Julian Assange in London in the Westminster Magistrates’ Court. Edward Fitzgerald made a witness statement application for co-counsel Jennifer Robinson who shared information concerning ex-California representative Dana Rohrabacher. She claimed that he made Assange a startling offer: if he cleared the Russians as the source of the hacked emails at the Democratic National Committee, Rohrabacher could get a presidential pardon from President Donald Trump. Now Rohrabacher himself says that it is true and that he spoke of the plan with Trump White House Chief of Staff, though he did not speak of the plan with Trump himself. The timing is particularly unfortunate for the White House with a report that U.S. intelligence believes that Russia is again seeking to intervene in the election and appears to be intervening in favor of Trump. Update: A new story suggests that the Russians could also be helping Bernie Sanders.

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Former Bush Deputy AG Denounces Barr As “UnAmerican”

YouTube Screenshot

Yesterday I wrote a column in the Hill criticizing hair-triggered responses to the controversy over the sentencing recommendation in the case of Roger Stone. This included former prosecutors who did not see the need to confirm critical facts before demanding the resignation of Barr. Former Deputy Attorney General Donald Ayer called Barr, his former colleague in the Bush Administration, “unAmerican.” It is a disgraceful attack on someone who has served his country for decades with distinction. Just as many (including myself) have denounced President Donald Trump for calling opponents disloyal or traitorous, this personal attack should also be roundly denounced by all sides in this controversy.

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Diss Barr? Trump Returns To Attacking The Justice Department

Despite a public condemnation by Attorney General Bill Barr, President Donald Trump is back tweeting and atacking a wide range of Justice Department attorneys and investigations. That includes the recently resigned prosecutors in the case of Trump associate Roger Stone. These irresponsible tweets continue undermine Barr and magnify the problems for the Administration with both the courts and Congress.

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Dershowitz Claims Obama Asked For An Investigation From FBI At The Behest Of Soros

Harvard Law Professor Alan Dershowitz pulled a Giuliani on television this weekend by claiming bombshell evidence in his possession but refusing to disclose it. On Fox News, Dershowitz claimed that he has conclusive proof that Barack Obama “personally asked” the FBI to investigation someone “on behalf of George Soros,” the wealthy liberal donor. However, Dershowitz mysteriously referenced future “litigation” where all of this would be disclosed.

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