Below is my column in the Washington Post Sunday on the legacy of Supreme Court Justice John Paul Stevens. With roughly 35 years on the bench, he was the nation’s second oldest and third-longest serving justice.
Stevens will lie in repose at the Supreme Court on Monday. On Tuesday his funeral will be held and he will be buried at Arlington National Cemetery. I expect he would have preferred center field at Wrigley but this is a strong second option.
Harvard Law Professor Alan Dershowitz is back in the news in connection to allegations that he was one of the men who had relations with underaged girls during trips with Jeffrey Epstein. New evidence has been released in the case that have rekindled the allegations against Dershowitz. Moreover, Dershowitz (who invited a defamation suit by the woman accusing him with having sex with her as a minor) is now seeking to dismiss the action and thus avoid discovery. Additionally, an early interview has been uncovered with what may be the single worst line since Bill Clinton’s “I experimented with marijuana a time or two, and didn’t like it. I didn’t inhale and I didn’t try it again.” When confronted on whether he did in fact accept a message from one of the women at Epstein’s mansion, Dershowitz admitted that he did but insisted “I kept my underwear on.”
There is a curious pattern in the Trump Administration that you need to beware of presidential praise which often proves the swan song for cabinet members. The latest is Labor Secretary Alexander Acosta who tried to keep his job with a press conference that was widely panned as trying to shift the blame for the sweetheart deal that he gave Jeffrey Epstein, the serial sex abuser. Since I previously called for Acosta’s resignation (and opposed his confirmation) based on his role in the Epstein scandal, I will not feign sympathy.
While the headlines have been occupied with the Epstein matter and the other news, there is something curious happening in federal court with Michael T. Flynn, the former national security adviser. Flynn was just listed as an unindicted co-conspirator by the Justice Department. That itself is odd since Flynn is a cooperating witness facing sentencing before a fairly hostile federal judge. Nevertheless, Flynn now says that the government was trying to get him to give false evidence in the the trial of a former business partner, Bijan Kian, who is accused of violating foreign lobbying disclosure laws. The move by Flynn (following his replacement of counsel) could indicate an “all in” position for a pardon.
I have previously testified and written about the questionable litigation strategy of the House Democratic leadership in fighting privilege assertions, including recommending cases that it should litigate as a matter of separation of powers. This week another conflict has arisen as the White House again invoked absolute privilege over a staffer. The White House said it will not allow presidential counselor Kellyanne Conway to appear before a House committee looking into her repeatedly violation of the Hatch Act, a federal law that limits political activity by government workers. The position of the White House in entirely untenable and would fail in the courts. This is the type of case that the House should litigate with vigor.
For years, many of us have criticized Donald Trump for his signature campaign mantra of “Lock her up” against Hillary Clinton. Now, however, Sen. Kamala D. Harris (D-Calif.) seems to be adopting a “Lock him up” pledge to jumpstart her campaign, which remains struck around fifth in the pack. Last week, Harris pledged to prosecute Trump. This morning, she said her Justice Department would have “no choice” but to prosecute Trump after he left office.
Today I have the honor of delivering a keynote speech to the 2019 Judicial Conclave in New Mexico at the Hyatt Regency in Albuquerque. I will be discussing the history, cases, and evolution of the “cultural defense” in federal and state courts. The speech is at 11:15 am on Friday at the conference held at the Hyatt.
Below is my column in The Hill newspaper on rejection of the lawsuit by the House of Representatives against the order issued by President Donald Trump to build the wall on the Southern border under the National Emergencies Act. I had previously testified against this lawsuit as a reckless and unnecessary move by the house. It is part of a litigation strategy that is clearly driven more by political than legal calculations.
Below is my column in The Hill newspaper on the press conference held by Special Counsel Robert Mueller and his refusal to answer questions from the media (or any questions from Congress beyond what is written in his Report). Mueller not only demanded silence but faith from the media, which surprisingly obeyed. Few reporters noted the direct contradictions in Mueller’s brief statement or the many unanswered questions that he left in his imperious wake. Since Attorney General Bill Barr has already testified on the process and his decisions related to the Report, there was nothing preventing Mueller from answering questions about his own decisions. Instead, Mueller simply said that the media would listen and remain silent . . . and the media dutifully complied.
Michael Wolff made a killing on his last book on Donald Trump despite denials from his sources as to key statements. He is now back with a sequel entitled “Siege: Trump Under Fire.” As before, there were instantly questions about Wolff’s standards and sources in making sensational claims. Two such claims immediately stood out as highly dubious, if not facially untrue. The Special Counsel’s office has already made a rare public denial of one of those claims: that Mueller’s office actually drafted indictments against Trump for obstruction of justice.
I recently testified in the House Judiciary Committee that the Congress must challenge the refusal of the Trump Administration to turn over certain records and to bar certain witnesses from oversight investigations. While I also disagreed with some of Congress’s actions, the Trump Administration has cannot withhold material from oversight authority on the basis of undeclared privileges or ill-defined objections. This is the case in the refusal to turn over tax records demanded by Congress. As I stated earlier, the House has made only generalized claims of a legislative purpose for such records. Nevertheless, the law clearly favors Congress in seeking such material. Notably, the Trump Administration has not claimed executive privilege but only that the Committee lacks a legislative purpose. That is not enough. Now, it appears that the Administration was warned by its own confidential Internal Revenue Service legal memorandum that it would be violating the law by withholding the records without an executive privilege claim. It ignored the legal memorandum and refused the congressional demand.
I will be testifying tomorrow before the House Judiciary Committee on President Donald Trump’s assertion of executive privilege and congressional oversight. The Hearing will be held 10 a.m. on Wednesday, May 15th, in Room 2141 in the Rayburn House Office Building.
Attorney General William P. Barr has assigned John H. Durham, the United States Attorney in Connecticut, to investigate the origins of the Russia Investigation. The country remains divided over the Russian Investigation with many questions raised as to political influence and targeting. Durham is a former special prosecutor with a long and distinguished record at the Justice Department, including prior investigations into CIA abuses of detainees and internal corruption. Besides, he has one of the most intense official photos in government that I have ever seen.