Category: Lawyering

Bizarre, Constitutional Law, Free Speech, Lawyering, Media, Politics

Krebs Files Lawsuit Against diGenova, The Trump Campaign, and Newsmax

Christopher Krebs, has filed a lawsuit against Trump attorney Joe diGenova over this controversial joke that Krebs should be “drawn and quartered” and then “shot” for his failures as the former head of U.S. cybersecurity.  The lawsuit strikes me as meritless under governing tort doctrines. While Mark Zaid declared that “no rational person” who heard diGenova calling for a person to be drawn and quartered and then shot “would have taken it as ‘jest,’” many of us took the comment as an obvious use of exaggerated rhetoric. While I immediately condemned the language, I did not view it as a serious call for violence. Torts cases of defamation often turn common understanding of such expression as jokes or opinion. The lawsuit not only contradicts governing case law but threatens constitutional protections for free speech and the free press in seeking such tort relief.

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Constitutional Law, Criminal law, Lawyering, Media, Politics, Society, Supreme Court

Is Biden About To Help Make The Case For A Self-Pardon?

With the nomination of California Attorney General Xavier Becerra for Secretary of the Department of Health and Human Services, the list of presumed frontrunners for Attorney General is narrowing. One name remains prominently at top: former Associate Attorney General Sally Yates.  Yates’ appointment would be one of the most controversial for Biden and would likely lead to an intense confirmation fight over her standoff with President Donald Trump at the start of his Administration as well as her role in the Russian investigation. However, in a strange way, Yates’ controversy could be exactly what both President Trump and President-Elect Joe Biden need if they are looking a basis for a self-pardon.

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Courts, Lawyering, Politics

Will Pot Save The President? Michigan Judge Orders Forensic Investigation of Roughly Two Dozen Dominion Voting Machines

The Trump campaign finally succeeded in one of its challenges yesterday to the extent that it was granted a court order for access and a forensic investigation of roughly two dozen Dominion voting machines. The machines are located in rural Antrim County where roughly 6000 votes were initially assigned to President-elect Joe Biden but then corrected and tabulated in favor of President Donald Trump. Four weeks ago, we discussed this controversy and the concern that such acknowledged human error could occur in other districts. The order from Judge Kevin Elsenheimer, however, concerns not the presidential election but a recounting of ballots in a village marijuana proposal.

Continue reading “Will Pot Save The President? Michigan Judge Orders Forensic Investigation of Roughly Two Dozen Dominion Voting Machines” →

Congress, Lawyering, Media, Politics

Democratic Members File Bar Complaint Against Trump Counsel Joe diGenova
YouTube Screenshot

We previously discussed the abusive move by Rep. Bill Prascell (D., N.Y.) to seek the disbarment of roughly a dozen Trump and Republican lawyers for challenging election results. Such calls have become common place. Indeed, during the impeachment trial of President Trump, North Carolina Law Professor Michael Gerhardt predicted that the entire Trump legal team would be disbarred after their representation of the President.  Now, Democratic Reps. Kathleen Rice (D-N.Y.) and Ted Lieu (D-Calif.), have filed a complaint alleging direct violations of the Rules of Professional Conduct against Trump lawyer Joe diGenova for his recent controversial remarks about fired Cybersecurity and Infrastructure Security Agency head Chris Krebs. In an interview, diGenova called for Krebs to be “drawn and quartered” for his failure to protect this election. While noting that I did not believe that diGenova was actually calling for violence, I immediately criticized those comments.  However, despite the view of ethics professor Stephen Gillers to the contrary, I do not believe that this is even remotely an ethical violation. It is however a clear use of bar rules for a political purpose.  Notably, Rice and Lieu, both lawyers, have been utterly silent on the campaign of harassment and abuse by groups like the Lincoln Project. There have been no calls for disbarment of those attorneys or investigations into threats of violence against Republican lawyers. Indeed, I have not read a single lawyer or law firm supporting the Lincoln Project denouncing its campaign to harassment fellow lawyers — a campaign that began shortly after Joe Biden was declared the presumptive winner of the election.

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Criminal law, Lawyering

Lawyers Under Investigation For Alleged Fraudulent Voting Schemes In Georgia

We recently discussed how figures like New York Times columnist Tom Friedman calling on people to move to Georgia to rig the vote in favor of a Democratic takeover of the Senate. It did not seem to matter to either the newspaper or Friedman that he was encouraging the commission of a felony. Yet, Friedman is not a lawyer. What is more disconcerting is that lawyers are alleged to be involved in such efforts.  Recently, Georgia officials confirmed that they are investigating The New Georgia Project — a group founded by lawyer Stacey Abrams — for allegedly seeking to register out of state voters and deceased individuals. On the Republican side, Florida attorney Bill Price is facing a more direct and serious investigation than Abrams (who has not been personally implicated in such actions). Price is shown in a video boasting of his own registration in Georgia at the home of his brother and encouraging others to do the same. Continue reading “Lawyers Under Investigation For Alleged Fraudulent Voting Schemes In Georgia” →

Academia, Constitutional Law, Hikes, Lawyering, Supreme Court

Turley To Speak at USC Law School on the Supreme Court

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.

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Lawyering, Politics, Society, Supreme Court

“The Supreme Court Needs A Breather”: Law Professor Calls For Replacement of Supreme Court With A “Specialized Court” For Constitutional Questions

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” →

Criminal law, Justice, Lawyering, Politics

Carter Page Files $75 Million Lawsuit Against The FBI, Comey, McCabe, and Others

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.

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Constitutional Law, Criminal law, Justice, Lawyering

The Best Case For A Flynn Pardon May Be The Conduct Of The Court Rather Than The Defendant

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” →

Congress, Lawyering, Media, Politics

Democratic Member Seeks To Disbar Two Dozen Lawyers Challenging Election Results

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.

 

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Constitutional Law, Criminal law, Lawyering, Media, Politics

Michigan Legislators Face Calls For Possible Criminal Charges After Meeting With President Trump On Certification

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.

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Criminal law, Lawyering, Media, Politics

Two Republican Michigan Officials Attempt To Rescind Certifications Of Election Results

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” →

Bizarre, Criminal law, Lawyering

Texas Lawyer Sentenced To Prison In Meth Conspiracy . . . Can Resume Practice In Three Years

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.

Columns, Courts, Lawyering, Media, Politics, Society

“The First Thing We Do”: The Lawless Campaign To Harass Lawyers Representing The Trump Campaign

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.

Here is the column: Continue reading ““The First Thing We Do”: The Lawless Campaign To Harass Lawyers Representing The Trump Campaign” →

Academia, Bizarre, Lawyering, Media, Politics

Law Professor Compares Questioning Voting Results To Holocaust Denial [Updated]

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.

Continue reading “Law Professor Compares Questioning Voting Results To Holocaust Denial [Updated]” →