Below is my column in the Hill on how the calls for a “national quarantine” ignore both the historical and legal foundations for such orders. While the President can reduce travel at transportation hubs and certainly call for a national quarantine as “an aspirational” matter, the legal authority to enforce a national quarantine is far from obvious.
Last night, we passed the 40,000,000 mark in views on the blog. It is an amazing level of traffic that continues to grow on the blog. When my wife’s family set up this blog on a vacation years ago (to nudge me into modern technology), I never imagined that it would become one of the largest legal blogs. It is a distinction that is due primarily to our loyal readers who return every day to discuss contemporary legal, political, and occasionally bizarre stories. We have used these moments to give thanks for our many regular readers around the world and give you an idea of the current profile of readers on the blog. We continue to rank in the top legal blogs in the world and I am particularly proud of our growing international readership. As always, I want to offer special thanks for Darren Smith who has continued to help manage the blog and help out folks who encounter posting problems.
The FBI has reportedly begun an investigation into the stock sales of Sen. Richard Burr before the crisis over the coronavirus. As I discussed in my recent column, such prosecutions are exceptionally difficult to bring by design. Like ethics investigations, these investigations often serve to simply “clear” a politician who is allowed under lax ethical rules to trade in areas of their legislative and committee work. The only real reform is not investigations but either a ban on stock ownership or, more appropriately, a requirement of a blind trust (with criminal penalties for steering trades). Moreover, if he were to be charged, I would likely be the first to object to a prosecution for trades that Congress has kept lawful for decades despite some of our calls for reform. [This article was updated]
Below is my column in The Hill newspaper on the continued calls for federal takeovers and nationalization of industries. The past commentary often reflects a fundamental misunderstanding of both our constitutional and statutory laws. What is also striking is that a significant number of governors appeared on Sunday shows but not one was asked about the failure of his or her state to prepare for such a public health emergency. Governors are referring to this crisis as if it were a previously unknown meteor from space. In fact, we have been discussing the utter lack of preparation for a pandemic for over two decades and states like New York were warned that they would be dangerously short such items as ventilators. I was part of that debate back in 2002 and 2003 when the model law for pandemic was being adopted by states — reaffirming the primary responsibility of the states to address pandemics.
We have previously discussed how NBC News anchor Chuck Todd uses questions to express extreme condemnations of President Donald Trump and his supporters. While Todd realizes that he would be fired for saying outright that Trump supporters “just want to be lied to,” he can make the same point by asking another person if they “just want to be lied to.” Todd returned to his feigned neutrality in asking presidential candidate Joe Biden if “there is blood on the president’s hands.” Not to be undone, Speaker Nancy Pelosi has declared that “as the president fiddles, people are dying.” At least Pelosi had the integrity to make the statement outright.
There are many who disagree with the executive order to mandate that new federal buildings follow classical styles of architecture. There are also those of us who have objected to some modern designs like the eyesore design in London of our new embassy. It is a view shared by Prince Charles who lamented how modern designs were ruining the classic profile of key London areas. However, Yale History Professor Glenda Gilmore and columnist Mark Lamster see a far more sinister and frightening meaning in President Donald Trump’s executive order: the blue print for fascism. It appears that we are just one Corinthian column way from an authoritarian structure.
In a repeat of her refusal to endorse Bernie Sanders in 2016, Massachusetts Sen. Elizabeth Warren again refused to do so before the critical Michigan primary after she pulled out. At the time, she said that she needed more time. Now, as liberal supporters have grown angrier at her failure to support Sanders (with many of the same priorities and policies), Warren is saying that she will not endorse because “Bernie needs space” to decide what to do. It now appears that Sanders is done after his losses this week. For Sanders, it is a familiar knife delivered by a familiar hand.
Fox regular and radio host Mark Steyn is under fire for outrageous remarks made while substituting for Rush Limbaugh on his program. In discussing the San Francisco’s “shelter-in-place” order due to the coronavirus, Steyn referred to the city as a “big gay town” and the order as an effort to prevent “all the gays dropping dead.” While Steyn (who is a regular and substitute host on Tucker Carlson’s show) is known for controversial statements but this is clearly beyond the pale of acceptable commentary.
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.
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.
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.
Michael Cohen, the former personal attorney and “fixer” for President Donald Trump, is calling on his former client to order the release of non-violent prisoners to avoid imposing a “death sentence” on him and others. The petition is a “plea to the President of the United States to save lives” to avoid a threat of lethal exposure for inmates like Cohen. Of course, given the extreme animosity that exists between Trump and Cohen, that may not be the optimal spin for inducing presidential action.
The Supreme Court has still not dismissed a New York gun case where New York City officials passed, in my view, a clearly unconstitutional gun control measure. Then, after proclaiming that they would defend the law to the Supreme Court, they tried desperately to withdraw the case after review was granted. That creates a serious question of mootness in New York State Rifle & Pistol Association Inc. v. City of New York. However, they may have pushed this game too far with the Court, which clearly did not like being played by politicians using the courts for grandstanding. Yet, there is a case out of Connecticut that could prove equally, if not more, important in defining the edges of the Second Amendment.