Category: Media

Media, Politics, Torts

Nunes Defamation Case Against CNN Dismissed On Procedural Challenge

 

The $435 million defamation lawsuit brought against CNN by Devin Nunes (R., CA), has been dismissed but not on a determination of truth or the merits. The decision was based on a technical or procedural omission by Nunes, but the jurisdictional question was an impressive combination of standards in three different jurisdictions. United States District Judge Laura Taylor Swain issued a ruling in New York to apply Virginia’s choice of law standard that in turn applied California’s defamation laws. It was a cascading deconstruction of the lawsuit.  Nunes ultimately lost due to a failure to demand a retraction with 20 days and then a failure to properly plead special damages in light of that jurisdictional finding.

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Lawyering, Media, Politics, Society

Lincoln Project Scandals Highlight The Role Of Lawyers As Donors

The Lincoln Project is facing rising allegations of ignoring sexual harassment claims against co-founder John Weaver, profiteering on donations, and even violating federal law in posting private messages by another co-founder. Now, in an effort to show that it is addressing the Weaver allegations fully and openly, the Project announced that it has retained a law firm to do an independent assessment of the controversy. However, the Project selected Paul Hastings, which has leading members (including a managing partner) who supported the Project financially. The support of lawyers for the Project is particularly troubling given its campaign to harass other lawyers to get them to drop Donald Trump or the Republican party as clients in election challenges. Continue reading “Lincoln Project Scandals Highlight The Role Of Lawyers As Donors” →

Columns, Congress, Constitutional Law, Criminal law, Lawyering, Media, Politics

Mutual Destruction: How Trump’s Trial Became A Tale Of Constitutional Noir

Below is my column in the Hill on second Trump trial and how core values quickly became the extraneous to the purpose of this constitutional process.  The final chaos triggered by Rep. Jaime Raskin (D., Md) only highlighted the procedural and legal irregularities in a trial that seem increasingly detached from values like due process.

Here is the column:

Continue reading “Mutual Destruction: How Trump’s Trial Became A Tale Of Constitutional Noir” →

Columns, Congress, Constitutional Law, Courts, Criminal law, Media, Politics

Did The Democrats “Tank” The Second Trump Trial?

Below is my column in USA Today on the lack of a strategy by the House to secure conviction in the trial of former President Donald Trump. As I have previously noted, the House managers did an excellent job in their presentations and many of the videotapes rekindled the anger that most of us felt over the riot. They also reinforced the view of many (including myself) that former president Donald Trump bears responsibility in the tragedy that unfolded due to his reckless rhetoric. Yet, there was a glaring omission in the substance of the House arguments. The managers did not lay out what the standard should be in convicting a former president for incitement of an insurrection and only briefly touched on proving any “state of mind” needed for such a conviction. That is why I have referred to their case as more emotive than probative. It lacked direct evidence to support the claim that Trump wanted to incite an actual insurrection or rebellion against the United States, as alleged in the article of impeachment.  I do not believe that an acquittal was inevitable in this case, but it was all but assured by critical decisions made by the House in this impeachment. The unforced errors discussed below raise the question of whether the Democrats “tanked” the trial.

Here is the column:

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Media, Politics

With Charity For Some? Lincoln Project Faces Questions Over The Spending And Compensation

The Lincoln Project has had a rough couple of weeks.  One of its co-founders, John Weaver, was accused of sexual harassment of young men and the Project attacked him as a sexual predator. As co-founders like George Conway denied any real familiarity or interaction with Weaver, others accused of the Project of turning a blind eye to his conduct.  Then one of its other co-founders, Jennifer Horn, resigned in protest only to be attacked by other Project members as allegedly trying to get more money out of the organization.  Now, the Lincoln Project is having serious questions raised over its compensation for co-founders and an accounting for tens of millions of dollars that may have gone to them or their own firms. Lincoln famously declared “with malice toward none, with charity for all,” but the Lincoln Project is accused of malice towards many but charity for a few.

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Bizarre, Congress, Media

“Fair Is Foul, And Foul Is Fair”: The Trump Trial Turns Into Shakespearean Tragedy

It seems that Shakespeare is the rage in the second impeachment trial of President Donald Trump.  When House managers were forced to take down the words of House manager Rep. David Cicilline (D., R.I.) after Sen. Mike Lee (R., Utah) denounced them as false, Rep. Jamie Raskin (D., Md) declared “this is much ado about nothing.”   Then Sen. Ted Cruz (R., Texas) characterized the entire trial as “reminiscent of Shakespeare [in] that it is full of sound and fury, and yet signifying nothing.”  MSNBC anchor Andrea Mitchell, however, missed the Bard memo and triumphantly declared that Cruz was wrong and mocked him with a tweet “@SenTedCruz says #ImpeachmentTrial is like Shakespeare full of sound and fury signifying nothing. No, that’s Faulkner.” She was joined in the effort by the Washington Post’s columnist Jennifer Rubin. In our age of rage, it appears that “Fair is foul, and foul is fair”… and Shakespeare is Faulkner and Faulkner is Shakespeare.

Continue reading ““Fair Is Foul, And Foul Is Fair”: The Trump Trial Turns Into Shakespearean Tragedy” →

Columns, Congress, Media, Politics

Reckless Rhetoric Is A Reckless Standard For An Impeachment Trial

Below is my column in the Hill on how the second Trump impeachment could become a trial over reckless rhetoric in America. The House managers may be playing into that very danger by selecting some managers who have been criticized in the past for their own over-heated political rhetoric.  As managers were replaying the comments of former President Donald Trump from prior years to show how his words fueled divisions, critics were pointing to similar statements from the managers themselves. Rep. Jamie Raskin, D-Md., the leading impeachment manager, was chided for using “fight like hell” in a 2019 interview with The Atlantic — the very words replayed repeatedly from Trump. He also used that phrase repeatedly in prior years to ramp up his supporters in fighting for Democratic control of Congress. Speaker Nancy Pelosi blundered by appointing managers like Eric Swalwell who is notorious for his inflammatory rhetoric, in a trial where such rhetoric would be the focus of the managers.  Swalwell’s comments not only include disturbing legal claims, but highly personal and offensive remarks like mocking threats against Susan Collins, R-Maine. Swalwell declared “Boo hoo hoo. You’re a senator who police will protect. A sexual assault victim can’t sleep at home tonight because of threats. Where are you sleeping? She’s on her own while you and your @SenateGOP colleagues try to rush her through a hearing.”  Pelosi picked not only a member who has viciously attacked Republicans but one of the Republicans most needed by the House in this trial. If this trial boils down to irresponsible political rhetoric, the public could find it difficult to distinguish between the accused, the “prosecutors” and the “jury.” That is the problem with a strategy that seems focused not on proving incitement of an insurrection but some ill-defined form of political negligence.

Here is the column:

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Congress, Constitutional Law, Media, Politics, Society

Modus or Media Operandi? CNN Runs Statement Of Anonymous “Senior Aide” Who Said Trump Loved Watching The Riot

We recently discussed how House managers are claiming the right to use Trump’s failure to testify at his trial as proof of guilt (despite the fact that presidents historically have not given such testimony at Senate trials).  Now CNN has released (on the day before the start of arguments) an account from an unnamed former “senior aide” that Trump was watching the riot in the Capitol unfold and “loving watching the Capitol mob.” The same pattern emerged in the first Trump trial. It is being described as the “smoking gun” evidence needed to secure conviction. The story highlights the decision of the House not to call witnesses before or after its snap impeachment. The question is why the House would use implication, innuendo, and inference when it could have used direct evidence to seek the conviction of Donald Trump.

Continue reading “Modus or Media Operandi? CNN Runs Statement Of Anonymous “Senior Aide” Who Said Trump Loved Watching The Riot” →

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

Why Has Trump Not Been Charged With Criminal Incitement?

Below is my column in The Hill on the news that Donald Trump will not be charged with campaign finance violations linked to payments made to Stormy Daniels.  The report (and the start of the Senate trial) raise another question as to why Trump has not been interviewed, let alone charged, with the crime of incitement. Various members and legal experts have claimed that the case for prosecution is clear on its face. The crime occurred in public over a month ago, but there is no indication of a move to prosecute. Why? It is presumably not because prosecutors feel it would be too easy.

Here is the column:

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Bizarre, Lawyering, Media, Politics

The Return Of Marc Elias: The Lawyer Implicated In The Clinton Dossier Scandal Is Back In The News

It appears that Marc E. Elias is back. The Perkins Coie lawyer was the focus of stories related to the Steele dossier and the long-denial of the Clinton campaign that it actually funded investigation. Despite such false statements by the campaign before the election, the money was found to have been paid out as a legal expense through Elias as counsel for the campaign. Elias also reportedly was present when this funding was denied to the media and to Congress. The Biden campaign enlisted Elias to lead efforts in election challenges despite that history. He is now making a curious argument in New York for a Democratic lawyer: he is alleging that thousands of votes may have been switched or changed by Dominion voting machines. Continue reading “The Return Of Marc Elias: The Lawyer Implicated In The Clinton Dossier Scandal Is Back In The News” →

Congress, Constitutional Law, Free Speech, Media, Politics

YouTube Censors Senate Testimony From Doctor On Possible Covid Drug

We have have been discussing how writers, editors, commentators, and academics have embraced rising calls for censorship and speech controls, including President-elect Joe Biden and his key advisers. The erosion of free speech has been radically accelerated by the Big Tech and social media companies, including YouTube. Now YouTube has censored actual testimony given to the United States Senate by Dr. Pierre Kory, who was testifying on different drug treatment. So now these companies are going to censor what was told to the government and decide what viewers will be allowed to consider from the public debate. It is a continuation of the movement to prevent people from hearing opposing views and to control what is shared or discussed in a growing attack on free speech. Continue reading “YouTube Censors Senate Testimony From Doctor On Possible Covid Drug” →

Constitutional Law, Criminal law, Free Speech, Media, Politics

Rep. Waters: Trump Needs To Be Charged With Premeditated Murder

Over the last four years, there has been a type of race by politicians and pundits who seek to outdo each other in the most sensational claims of how Donald Trump could be prosecuted or impeached on an ever-expanding list of offenses. Each claim is stated with absolute certainty despite long-standing questions or constitutional barriers. Democratic Rep. Maxine Waters of California has been a standout in this crowd — calling for impeachments and prosecutions from the very beginning of Trump’s term in office. She is now insisting that Trump can and should be charged with “premeditated murder” over the deadly riots at the U.S. Capitol on Jan. 6th. The statement was made on MSNBC which has trafficked in such ridiculous theories without any pushback from the media or legal experts. Continue reading “Rep. Waters: Trump Needs To Be Charged With Premeditated Murder” →

Bizarre, Media, Politics

Newsmax Meltdown: Host Leaves Set As “My Pillow” CEO Lindell Continues To Argue Election Fraud

We have previously discussed the unhinged and unsupported claims of “My Pillow” CEO Mike Lindell. However, an interview on Newsmax shows just how out of control this debate has become as a host tried to stop Lindell from making unsupported claims. Eventually Anchor Bob Sellers walked off the set in what was a live meltdown on national television. Continue reading “Newsmax Meltdown: Host Leaves Set As “My Pillow” CEO Lindell Continues To Argue Election Fraud” →

Academia, Media, Politics

The NYU Study: The Claim Of Anti-Conservative Bias In Social Media Is Unfounded But Inconclusive?

There has been much press about the  New York University study, “False Accusation: The Unfounded Claim that Social Media Companies Censor Conservatives.” It is being touted by the media as establishing that any allegations of bias against conservatives is “disinformation,” the term used by authors Paul M. Barrett and J. Grant Sims of the NYU Stern Center for Business and Human Rights. That term of course is now used as a basis for flagging or censoring material. The problem is that the study is largely conclusory and, though buried in the study, acknowledges that it is not based on any real hard data and is therefore “inconclusive.”

Continue reading “The NYU Study: The Claim Of Anti-Conservative Bias In Social Media Is Unfounded But Inconclusive?” →

Constitutional Law, Free Speech, Media, Politics

“A Harm Reduction Model”: CNN’s Brian Stelter Offers A Perfectly Orwellian Attack On Free Speech And Freedom Of The Press

We have seen in the last four years how rage has replaced reason for many experts.  Legal experts who long defended criminal defense rights have suddenly become advocates of the most sweeping interpretations of criminal or constitutional provisions while discarding basic due process  and fairness concerns. Academics who teach journalism have called for an abandonment of neutrality and objectivity. The Democratic Party itself has become the champion of censorship. Even in this company, CNN’s media expert Brian Stelter is a standout. Stelter has been regularly criticized for alleged bias but this week Stelter offered an argument for limiting both free speech and the free press that would have kept George Orwell up at night. Stelter told his viewers that they really do not have to talk about censorship and simply should refer to reductions of free speech as “a harm reduction model.” Continue reading ““A Harm Reduction Model”: CNN’s Brian Stelter Offers A Perfectly Orwellian Attack On Free Speech And Freedom Of The Press” →

Res ipsa loquitur – The thing itself speaks