Category: Media

Constitutional Law, Criminal law, Media, Politics, Uncategorized

Does Congress Have Any Options After Flynn Takes The Fifth? You Bet.

440px-Michael_T_FlynnThere has been a chorus of commentators saying that the invocation of the Fifth Amendment by former national security advisor Michael Flynn leaves only immunity as the unlikely option for Congress. This was stated repeatedly on CNN last night.  (I was supposed to go on Anderson Cooper and I was going to correct that view but the terrible massacre in England obviously took priority in coverage).  The fact is that there is an obvious option: move to hold Flynn in contempt.  The case law is not a clear cut as commentators have suggested on the “act of production doctrine.”  Moreover, Congress has an institutional interest in pushing back on such invocations if it does not view the production as testimonial.

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Environment, Free Speech, Justice, Media, Politics, Religion

Oregon Organic Farm Threatened With Forced Herbicide Use Reaches Settlement With County

Last weekend we featured two articles (HERE and HERE) describing a controversy involving the forced use of chemical herbicides on an organic farm that according to County officials was out of compliance in controlling noxious weeds that were threatening neighboring farms and crops.

The 2,000 acre organic farm in North Central Oregon is facing what could be an existential threat to its operations after county weed control authorities sent notice mandating that the farm use chemical herbicides to eradicate weed growth.

I attended the public hearing held at the Sherman County seat located in Moro, Oregon. Due to a very high volume of interest expressed by residents and those outside the community, the venue was changed from the County Courthouse to a gymnasium at the Sherman County High School. There was a great deal of uncertainty manifest in this hearing with strongly held opinions on many sides and one can say with near certainty that the publicity generated caused turmoil in this small community. In fact, the concern was so great, that a number of law enforcement officials were dispatched to the area to provide security to address a worry that things might get out of hand. But in the end the two sides reached an agreement that precludes the forced use of herbicides–and offered both a carrot and stick for both parties to strongly consider.

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Bizarre, Criminal law, International, Media, Politics, Uncategorized

New York Times: Trump Told Russians Comey Was “Nut Job” and His Firing Took Pressure Off Russian Investigation

donald_trump_president-elect_portrait_croppedThe New York Times is reporting (and the White House has reportedly confirmed) that President Donald Trump made some truly disturbing comments in his controversial meeting with the Russians.  Not only did Trump call former FBI Director James Comey “a real nut job” but told the Russians that the firing has taken pressure off of him in terms of Russia.  The leaked summary will fuel the allegations that Trump fired Comey to try to shutdown the Russian investigation to relieve pressure on himself.  While I have discussed my skepticism over the evidence of an actual crime by the President, Trump appears committed to leaving the greatest incriminating impression possible in such meeting.

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Columns, Congress, Constitutional Law, Criminal law, Media, Politics, Society, Uncategorized

A Question of Law: Calls for the Indictment or Impeachment of Donald Trump Are Transparent and Premature

donald_trump_president-elect_portrait_cropped440px-Comey-FBI-PortraitBelow is my column in The Hill Newspaper on the chorus of commentators suggesting that the Comey memo is compelling evidence for either a charge of obstruction of justice or an actual impeachment.  I have been cautioning against such sweeping assumptions.  Obstruction is a crime and crimes have elements.  The elements are not satisfied by this memorandum.  Yesterday senators revealed that Rod Rosenstein suggested that he was already informed that Comey would be fired before he wrote his memorandum supporting termination.  That would not materially alter the legal analysis.  Rosenstein’s memo confirms that he believed that Comey should be fired.  He had met with Comey and clearly left with reservations over his continued fitness for the position.  The fact that Trump may have made what Rosenstein thought was the right decision for the wrong reason is marginally relevant. Comey’s immediate boss was not supporting his retention.  Moreover, Trump’s conflicting statements do not improve the case for prosecution.  It it true that Trump has contradicted his staff and seemingly himself.  Yet, Trump has insisted that he felt Comey was doing a poor job and yesterday he reaffirmed his position that he never asked Comey to drop the Flynn investigation.  However, even if he said such an incredibly inappropriate thing, it would not meet the standards of obstruction for the purposes of a criminal charge in my view.  In other words, this is a question of law not fact and the law is not on the side of those calling for criminal counts or articles of impeachment.

Critics increasingly sound like my kids when we drive across country and start to chant “are we there yet?” before we are even a block from the house.  Many view a criminal charge or impeachment as the only hope for America.  However, neither the criminal code nor Article II were meant as post hoc political options for unpopular presidents. Indeed, both are designed to be insulated from public distempers and passions.

None of this means that this is not a valid basis for investigation. It is.  Moreover, the White House staff appears encircled like a wagon train on the Plains with no ammunition and no nearby fort. The difference is that they seem encircled by their own president who continued to prevent any movement to better ground.  What is fascinating is that Trump appears intent on creating the most self-incriminating appearance without evidence of an actual crime on his part.

Here is the column:

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

The Russian Disclosure: Trump’s Game of Truth or Dare

donald_trump_president-elect_portrait_croppedBelow is my column in USA Today on President Donald Trump’s disclosure of highly classified information to the Russians in his controversial meeting after the firing of James Comey.  While the Administration issued a series of categorical denials of the underlying stories as “false,” the next day it appeared to acknowledge that Trump did in fact reveal the information.  As discussed below, it was a wise decision not to repeat the initially misleading statements to Congress.  The intelligence was reportedly generated by Israel, which did not give permission to the President to make the disclosure to the Russians.  Since the New York Times and Washington Post did not say that Trump released “sources and methods,” it now appears that the White House is not claiming that the stories were false.  It is the latest example of denials from the White House which then lead to embarrassing reversals over the course of the coverage.  The only good sign is that the White House saw that the false account was raising serious problems and reversed course the next morning. However, the familiar pattern has taken its toll on the Hill where members were conspicuously absent this time in defending the President.

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Bizarre, Constitutional Law, Lawyering, Media, Society

Yates Goes On CNN To Declare That Russians Had “Real Leverage” Over Flynn

sally_q-_yatesI have previously been critical of the stance taken by former acting Attorney General Sally Yates.  I remained unconvinced that Yates had the ethical basis to order for the entire Justice Department to stand down and not to assist the president in the defense of his first executive order on immigration. I also questioned Yates’ decision to voluntarily testify before the House Permanent Select Committee on Intelligence.  She was testifying as someone who was recently in a prosecutorial position about subjects related to an ongoing investigation where no one has yet to be indicted.  Now those concerns have been magnified by Yates’ appearance in the media to talk about matters center to the ongoing investigation at the Justice Department and other related subjects.

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Constitutional Law, International, Media, Politics

Trump Meets With Erdogan In Midst Of Rising Scandal Over His Alleged Disclosure of Classified Information To Russians

The one thing you can say about this President is that he has an impressive sense of timing. Unfortunately it tends to be bad timing.  First there was the disastrous meeting with the Russians in the wake of his firing former FBI Director James Comey.  The optics could not be worst . . . until the meeting got worse with the alleged disclosure of code name intelligence from an ally.  That meeting was held at the request of Russian president Vladimir Putin and then the Russians releases pictures taken by its state-run media organization, Tass, to the embarrassment of the Administration.  Now, after Trump has threatened to cancel daily press briefings and change libel laws to allow easier lawsuits against the media, he is meeting with one of the one of the world’s most authoritarian figures, Turkish President ­Recep Tayyip Erdogan. Trump was previously criticized for calling Erdogan to congratulate him for acquiring near dictatorial powers in a close referendum.  The last leader that anyone would want commiserating with Trump at this moment is Erdogan who has arrested journalists and critics alike in a crackdown on free speech and the free press.

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Congress, Constitutional Law, Criminal law, Media, Politics, Society

Rand Paul Discloses That Another Senator Was The Subject Of Surveillance Under Obama

440px-Rand_Paul,_official_portrait,_112th_Congress_alternateThere has been comparatively little coverage of an allegation voiced by Sen. Rand Paul that another Senator confided in him that he was also subjected to surveillance under the Obama Administration.  Paul previously voiced his belief that he may have been the subject of surveillance and asked the intelligence committee for confirmation of any such evidence.   The surveillance of members of the Senate would raise extremely serious questions on the abuse of surveillance authority and threat to the independence of Congress.  If this is untrue, I would have expected a reassuring denial to be issued. Even if the Senators were not the target of surveillance, it would be highly troubling if the government monitored conversations with members of Congress.

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

Trump’s Inner Nixon: Is It Possible To Have a Cover Up Without An Actual Crime?

Below is my column in the Hill Newspaper on the Comey termination and comparisons to the Nixon presidency.  Those analogies deepened this weekend after the President repeated that he thinks that they should just get rid of the daily press briefings that have been such a central part of White House operations for decades.  What is most striking is how, again, the White House has engineered its own undoing.  Many people had called for Comey to be fired, particularly Democrats. However, the timing and manner of the termination has created yet another scandal for the Administration. Only 27 percent of citizens support the decision according to a NBC/Wall Street Journal poll.  The growing credibility crisis has made the appointment of a Special Prosecutor (or even the resurrection of the Independent Counsel Act) a priority for many. While I have been a dissenting voice regarding the need for a Special Prosecutor, the Comey debacle has changed my view.  The public deserves an independent investigation into these allegations and related issues.  Perhaps people will be satisfied with the FBI investigation under a new director, but the last week has been so damaging to public confidence that the need for an independent investigation is obvious. Having said that, I am still unsure of the major crime being investigated under the facts that are currently known.  For the moment, this Administration appears intent of self-incriminating actions in the absence of an actual crime.

Here is the column:

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Bizarre, Media, Society

Chris Zarconi Shows Documentary Men of Steel at GW’s Corcoran Gallery

Last night, my son Jack and I went to see the documentary Men of Steel by photographer Chris Zarconi.  Zarconi is a graduate student at George Washington University and set out in his to photograph the rust belt and interview those still living in cities like Youngstown, Ohio.  He is an amazing photojournalist and filmmaker.  These are his pictures (published with his consent). Zarconi was also one of the plaintiffs in Chang v. United States, the mass arrest case stemming from the 2002 protests of the World Bank and the IMF.  I had the honor of representing Chris and the other plaintiffs with my co-lead counsel Daniel Schwartz and his colleagues at the Bryan Cave law firm.  Chris was arrested while working as a photo journalist for the award-winning Hatchet university newspaper.

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Bizarre, International, Media, Politics

Trump Met With Russians At The Request Of Putin

220px-From_Russia_with_Love_–_UK_cinema_posterThe decision of the White House to host Russian Foreign Minister Sergey Lavrov and Russian Ambassador to the United States Sergey Kislyak on the day after the termination of FBI Director James Comey ranks as one of the worst political decisions of a White House in years.  Kislyak is the very Russian diplomat at the heart of the allegations of influencing peddling and collusion with Trump officials.  Just as every network was exploring allegations that Comey was fired to protect Trump was an investigation into his ties with the Russians, the White House guaranteed that the Russians would be shown huddling with Trump followed by grinning photos in the Oval Office.  That can be attributed to a long litany of self-inflicted wounds by this White House. However, what was more disturbing was the fact that U.S. photographers were barred from the meeting.  Only the photographers from Tass were allowed. Tass is state-run agency.  So not only did Trump meet with the Russians at the height of the allegations over Russian influence but the American people only saw pictures given to them by the Russians.

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Bizarre, Media, Politics, Society

Kellyanne Conway Accuses Anderson Cooper of Sexism After Rolling His Eyes During Interview

conway12n-2-webI was at CNN the night of the firing of James Comey.  Frankly, it was utter chaos as Washington exploded with the news.  (The green room was packed with folks waiting to go on.  I left rather than wait all night for an uncertain hit.  I was far more interested at that point in the Cubs-Rockies game).  I was in other words an “eyewitness” in the crowded green room when White House counselor Kellyanne Conway was interviewed by Anderson Cooper who noticeably rolled his eyes.  Some in the green room were thrilled by the demonstration.  One person who was not thrilled was Conway herself who leveled a charge of sexism the next morning on Fox News.  (For the record, Conway is my former student at GW Law School).  For the record, having worked with Anderson for years, I do not believe that he has a sexist bone in his body.  That does not excuse the lapse of professionalism and it will magnify criticism of the network as openly anti-Trump.

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Constitutional Law, Media, Politics, Society

Report: Rosenstein Appears To Deny That He Threatened To Resign Over False Account Regarding His Comey Memorandum [UPDATED]

Rod_Rosenstein_US_AttorneyDeputy Attorney General Rod Rosenstein who wrote the memorandum firing James Comey  is back in the news today.  Various news organizations are reporting that he allegedly threatened to quit after the White House represented that Comey was fired based on his recommendation.  Both the Washington Post and ABC News are reporting that Rosenstein was sufficiently outraged by the White House statements that he was prepared to walk.  The reporting is highly disturbing on a number of levels.  The White House made a notable change in its account of the decision yesterday — admitting that Trump decided that he wanted Comey gone over a week earlier.  Of course, this does not change the fact that Rosenstein recommended the firing of Comey in the memo but it raises serious questions of the veracity of the White House. UPDATE: The White House is categorically denying that Rosenstein threatened to resign.  More importantly, Rosenstein has denied that he threatened to resign though it is not clear if he denied calling the White House to object to its portrayal of the facts leading to the termination.

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

Sally in Wonderland: The “Curiouser and Curiouser” Position of The Former Acting Attorney General

Below is my USA Today column on the testimony of Sally Yates, former acting Attorney General, on her unprecedented order to the Justice Department not to assist President Donald Trump in the defense of his immigration executive order.  While the hearing was focused on her warning with regard to former National Security Adviser Michael Flynn, some of us were more interested in how she would respond to criticism over the order that led to her being fired.  Both Democratic and Republican lawyers have raised serious ethical misgivings over her decision.  The hearing however only magnified the questions over the basis for her actions. Here is the column.

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Congress, Courts, Media, Politics, Society

James Comey and Posthumous Acclaim In Art and Politics

With the firing of FBI Director James Comey, politics seems to be following art in one important fashion: your work becomes more popular after you’re dead. Jim Croce was barely known as a singer until his plane crashed and burned. Van Gogh sold only one picture in his lifetime . . . until he shot himself. Comey’s work appears to be on the same track of retrospective popularity. He is now the rage. Democratic Senators and liberal commentators who only recently denounced him as a political hack and manipulator were suddenly speaking of Comey as the second Publicus. More importantly, news outlets like CNN went into a virtual echo chamber with their experts, like Jeff Toobin, declaring that the President was lying and that there was no other explanation for firing Comey other than that fact that the Russian investigation was “getting too close” to Trump. One CNN guest historian, Douglas Brinkley,  even declared, from a purely historical perspective of course, that the firing shows that Trump acts like a “tyrant.”

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