Category: Media

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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Congress, Constitutional Law, Media, Politics

Self-Pardons: A Response To Judge Michael Luttig

We have recently been discussing the arguments for and against presidential self-pardons — a debate that has raged for decades among academics. Some of us believe that the absence of a limitation for such pardons should carry the day on the constitutional interpretation. Judge Richard Posner discussed the issue in commentary and also concluded that “it has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.”  Others believe that the intent is clear against such self-dealing even if the language is silent. What is notable is that, while we disagree on this interesting historical and constitutional question, we are virtually unanimous in our view that such self-pardons are inherently abusive and should not be granted. This is a good-faith disagreement and I have never argued that the answer is clear. I have tremendous respect for many on the other side of this debate including former Judge Michael Luttig, who just penned a thoughtful column in the Washington Post arguing against such self-pardons. I recommend that you read the column in full but I wanted to respond to some of its more salient points. Continue reading “Self-Pardons: A Response To Judge Michael Luttig” →

Constitutional Law, Criminal law, Media, Politics, Society

Admiral Giroir Slams Bans On Outdoor Dining As Without Scientific Basis

Just before I was interviewed today on Fox about ongoing challenges to shutdown orders, Admiral Brett Giroir was interviewed and gave what must have been welcomed views on the science behind pandemic orders. A hearing is scheduled tomorrow in one of the challenges by businesses in California to the lockdown ordered by Governor Gavin Newsom.  Giroir however stated that there was no evidence or science supporting the type of categorical lockdown in states like California, particularly bans on outdoor dining. The statement presents a potential conflict with Dr. Anthony Fauci. It certainly contradicts the common narrative in the media and the recent election. Continue reading “Admiral Giroir Slams Bans On Outdoor Dining As Without Scientific Basis” →

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

Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle

Below is my column in USA Today on the implications of the appointment of U.S. Attorney John Durham as a Special Counsel.  House Intelligence Committee Adam Schiff and other Democrats have already denounced the move and called for the next Attorney General to consider rescinding the appointment.  While Schiff previously called for legislation to protect Special Counsel Robert Mueller to complete his work without interference from the Attorney General, he ramped up the rhetoric against Durham as leading a “politically motivated investigation.” Durham was previously praised by Democrats and Republicans alike as an independent, apolitical, and honest prosecutor.  After insisting that the public has a right to see what has been uncovered over years of investigation by Mueller, they are now pushing to end the Durham investigation and forestall any final public report.

Here is the column:

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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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Bizarre, Media, Politics

Daily Beast Editor Calls For “Humiliation” and “Incarceration” For Trump Supporters

We have been discussing the rising threats against Trump supporters, lawyers, and officials in recent weeks from Democratic members are calling for blacklists to the Lincoln Project leading a a national effort to harass and abuse any lawyers representing the Republican party or President Trump. Others are calling for banning those “complicit” from college campuses while still others are demanding a “Truth and Reconciliation Commission” to “hold Trump and his enablers accountable for the crimes they have committed.” Now, Daily Beast editor-at-large Rick Wilson has added his own call for “humiliation,” “incarceration” and even ritualistic suicides for Trump supporters in an unhinged, vulgar column. Wilson declared “[o]nly exposure, pain, humiliation, and (inshallah) incarceration will lead to a moment of reckoning for the GOP.”

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Free Speech, Media, Politics

“And Why Stop There?”: CNN Analyst Calls For Sweeping Regulation of Free Speech On The Internet [Updated]

We previously discussed the unrelenting drumbeat of censorship on the Internet from Democratic leaders, including President-elect Joe Biden. Those calls are growing as anti-free speech advocates see an opportunity in the Biden Administration to crackdown on opposing views. One vocal advocate of censorship and speech controls has been CNN media analyst Oliver Darcy who just ratcheted up his call for de-platforming opposing views. Like many anti-free speech advocates, Darcy simply labels those with opposing views as spreading “disinformation” and demands that they be labeled or barred from social media. In a recent newsletter, Darcy calls for every tweet by Trump to be labeled as disinformation while asking “and why stop there?” Precisely. Once you cross the Rubicon of speech regulation, there is little reason or inclination to stop.  Just look at Europe. Continue reading ““And Why Stop There?”: CNN Analyst Calls For Sweeping Regulation of Free Speech On The Internet [Updated]” →

Constitutional Law, Free Speech, Media, Politics

Trump Administration Moves To Bar Any Group Supporting A Boycott of Israel

For years, we have discussed the effort of states to bar individuals, groups, and businesses from state contracts if they support the Boycott, Divestment, and Sanctions (BDS) movement against Israel. Other Western nations have also moved to declare BDS “hate speech.” I have previously opposed such laws as unconstitutional and an attack on free speech. I do not support the BDS movement but I believe that it is a form of political speech that should be protected. For that reason, the move this week by Secretary of State Mike Pompeo is alarming. He has declared that any non-profit groups supporting BDS will be cut off from government funding. Continue reading “Trump Administration Moves To Bar Any Group Supporting A Boycott of Israel” →

Constitutional Law, Criminal law, Media, Politics

Michigan Attorney General Resumes Threats Of Criminal Prosecution Against Those Alleging Voter Fraud

We have been discussing the use of the criminal code by Michigan Attorney General Dana Nessel (D) to threaten people who post videos on alleged voter fraud or legislators who raise such objections in the state. These threats are coercive and abusive, particularly when targeting opponents of your party who are challenging the victory of your candidate for president. Yet, as shown by a congressman seeking to disbar dozens of Trump lawyers, such threats are popular in today’s rage-filled politics.  So, Nessel continued her threats of prosecution on Monday in warning that a former state senator could be prosecuted for alleging possible voter fraud at a meeting of the Michigan Board of State Canvassers.  So, raising voting fraud at the board overseeing voting is now a possible basis for prosecution in Michigan. Continue reading “Michigan Attorney General Resumes Threats Of Criminal Prosecution Against Those Alleging Voter Fraud” →

Columns, Congress, Constitutional Law, Media, Politics, Society

The Death Star Strategy: Is Trump Contemplating The Ultimate Constitutional Trick Shot?

Below is my column in The Hill on the possibility of contesting electoral certifications by key states. With the adverse ruling in Pennsylvania, the Trump legal team is still pledging new evidence of massive fraud as certifications are completed. The options for the team seem more and more reduced to the ultimate constitutional trick shot in engineering a fight on the floor of Congress.

Here is the column:

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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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Bizarre, Media, Politics

Say It Ain’t So, Joe: CBS Reporter Draws Ire Of Biden For Asking Substantive Question
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, Media, Politics, Torts

Will The Trump Team Prove A Global Conspiracy or Will Dominion Sue For Defamation?

The press conference held by the Trump legal team was not for the faint of heart.  The team alleged a global, Communist-backed conspiracy to “inject” and “change” votes through the use of the Dominion computer system. It was exhausting and breathtaking. I was critical of the press conference as being long on heated rhetoric and short on hard evidence. Dominion issued a statement categorically denying the allegations. The question is whether Dominion itself will now sue.  The company denied the allegations but I often measure such denials by whether anyone actually sues.  Dominion could do so and force the Trump team to reveal the evidence supporting their allegations or face potentially significant liability. These are not just colorful but criminal allegations against named companies and by implication corporate officials and political allies.

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Res ipsa loquitur – The thing itself speaks