Category: Politics

Columns, Congress, Constitutional Law, Politics

Portman’s Principled Stand: A Response To The Cincinnati Enquirer

Below is my column in the Cincinnati Enquirer in response to a column criticizing Sen. Rob Portman for his vote to acquit former President Donald Trump in his second impeachment trial. Portman (who recently announced that he will not run for reelection) is one of the most thoughtful and decent figures in Congress. James Freeman Clarke once said “A politician thinks of the next election; a statesman of the next generation. A politician looks for the success of his party; a statesman for that of his country.” I have spoken with Sen. Portman on constitutional and legal issues for years and he always epitomized what Clarke meant about a true statesman.  His decision not to seek reelection was a blow for the Senate as someone who was eager to work with the other party on finding solutions to our growing national problems. That is why I felt I had to respond to a recent column by Opinion Editor Kevin Aldridge. I have no doubt about Aldridge’s good-faith disagreement with the verdict. However, we need to reach a place where we can disagree on such issues without questioning each other’s integrity or honesty. To that end, I want to thank the Cincinnati Enquirer (and Mr. Aldridge) for having the integrity of running my column.  This is the essence of dialogue and we may find that what divides us is not nearly as great as what unites us as citizens.

 

Here is the column: Continue reading “Portman’s Principled Stand: A Response To The Cincinnati Enquirer” →

Columns, Congress, Criminal law, Politics

“A Date Which Will Live In Infamy”: The Other Scandal From The Capitol Riot

Below is my column in the Hill on the lingering questions over decisions made in Congress before the Capitol riot on January 6th.  The analogy to Pearl Harbor drawn by Senate Majority Leader Chuck Schumer may be more telling than intended.

Here is the column:

Continue reading ““A Date Which Will Live In Infamy”: The Other Scandal From The Capitol Riot” →

Bizarre, Politics

On Thin Ice? De Blasio Reverses Closures of Trump-Operated Ice Skating Rinks

We recently discussed the legal and political implications of the effort by Mayor Bill de Blasio to close Trump-operated rinks and golf facilities. While the city lawyers were developing viable rationales for closing the Wollman Park and Lasker Rinks, de Blasio staff went out of its way to make clear that the effort was political retaliation against Trump. De Blasio’s spokesperson proudly announced that “Trump has been impeached from operating the ice rink.”  Now, de Blasio has reversed his decision after backlash over a petty move that would not only cut off ice skating early for residents but throw employees out of jobs weeks early.  The question is how the reversal will impact other legal efforts targeting the Trump Organization. Continue reading “On Thin Ice? De Blasio Reverses Closures of Trump-Operated Ice Skating Rinks” →

Bizarre, Politics

“Trump Has Been Impeached From Operating The Ice Rink”: De Blasio’s Cancelation of Trump Concession Contracts Raises Questions Of Political Retaliation

Mayor Bill di Blasio has ordered the closure of the two ice rinks in Central Park, the Wollman Park and Lasker Rink. The mayor’s staff clearly wanted to the reason for the closure to be clear and public. Various groups have pushed for the city to cut all ties with the Trump organization and the city moved against the organization last month on the contracts. De Blasio’s spokesperson announced that “Trump has been impeached from operating the ice rink.” That statement might not be welcomed by city lawyers since it suggests that the closures were an exercise of selective bias against a company for political purposes. Despite the unpopularity of Trump in New York, the use of city contracts for raw political retaliation should be unacceptable to most citizens (particularly when the cost is borne not just by the public but more importantly employees who were laid off early).  The spokesperson’s words could now be the focus of litigation over any losses by the Trump Organization. Continue reading ““Trump Has Been Impeached From Operating The Ice Rink”: De Blasio’s Cancelation of Trump Concession Contracts Raises Questions Of Political Retaliation” →

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.

Continue reading “Nunes Defamation Case Against CNN Dismissed On Procedural Challenge” →

Academia, Free Speech, Politics

“A Desire That They Suffered Until Their Last Breath”: Alabama Professor Under Fire For Hateful Comments Following Rush Limbaugh’s Death
Professor Sarah Parcak of the University of Alabama-Birmingham has been a lightning rod of controversy, particularly on conservative news sites, for her calls for banning books and “how to” instructions on toppling public art like obelisks in violent protests. She is now under fire for saying that she hoped that conservative figures like the recently deceased radio commentator Rush Limbaugh “suffered until their last breath.” She has since taken her Twitter account private to bar general access, but some are calling for her to be fired. As will come as little surprise to many on this free speech site, I strongly oppose such calls even though I find Parcak’s extremist and unhinged views reprehensible. Continue reading ““A Desire That They Suffered Until Their Last Breath”: Alabama Professor Under Fire For Hateful Comments Following Rush Limbaugh’s Death” →
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” →

Academia, Columns, Congress, Constitutional Law, Politics

A Return To Rage: Schumer and Pelosi Attack Members Who Voted To Acquit As Political Cowards and Shills

There was a palpable sense of relief in Washington as the Trump trial came to a chaotic but final end. The verdict is in so now the vilification can begin. Both Majority Leader Chuck Schumer and Speaker Nancy Pelosi immediately weaponized the verdict and demonized those who voted to acquit. While the Democrats insisted that all senators should “vote their conscience” that only meant if their conscience supported their side.  Pelosi denounced opposing senators as cowards while Schumer lashed out at them for holding an opposing view of the evidence or the process.  While groups are targeting members on both sides of the trial, our leaders should be calling for unity and civility after the trial. Instead, they are fueling the politics of division.

Continue reading “A Return To Rage: Schumer and Pelosi Attack Members Who Voted To Acquit As Political Cowards and Shills” →

Lawyering, Politics

“We’ve Heard From Enough Witnesses”: Democrats Oppose Calling Witnesses While Schumer Leaves It To The House Managers

Senate Majority Leader Chuck Schumer announced yesterday that he would leave the question of whether to call witnesses to the House managers to decide. In the meantime, various Democratic senators said that there is no need for witnesses despite the House repeatedly acknowledging that it does not know critical facts related to Donald Trump’s state of mind. The position of Schumer and the Democrats is in strikingly contrast to their positions in the last two impeachments. Continue reading ““We’ve Heard From Enough Witnesses”: Democrats Oppose Calling Witnesses While Schumer Leaves It To The House Managers” →

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:

Continue reading “Did The Democrats “Tank” The Second Trump Trial?” →

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.

Continue reading “With Charity For Some? Lincoln Project Faces Questions Over The Spending And Compensation” →

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:

Continue reading “Reckless Rhetoric Is A Reckless Standard For An Impeachment Trial” →

Academia, Congress, Constitutional Law, Politics

The Belknap Margin: The Senate Decision Shows Not Much Has Changed Since 1876

When the House moved to impeach President Donald Trump for a second time, I wrote a column on the similarities to the William Belknap impeachment in 1876. The vote of the Senate to continue the trial despite a constitutional challenge over the use of a retroactive trial bore striking resemblance to that earlier decision.  That should be good news for Trump. The Senate declared the trial constitutional and effectively over by its 56-44 vote. Continue reading “The Belknap Margin: The Senate Decision Shows Not Much Has Changed Since 1876” →

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” →

Res ipsa loquitur – The thing itself speaks