We have been discussing the previously announced use of terrorism laws to address violent protests around the country, a move that I have criticized as raising civil liberty concerns. There have been cases that arguably fit a terrorism model however and now the Justice Department has charged a new such case against two women associated with Antifa and anarchist groups. Samantha Frances Brooks, 27, and Ellen Brennan Reiche, 23, were charged with terrorism crimes in allegedly trying to place a “shunt” on railroad tracks to cause a train to derail. Continue reading ““It’s Going Down”: The Justice Department Charges Two Women on Terrorism Charges”→
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.
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.
Retired Gen. Michael Flynn embraced an extreme call this week for President Donald Trump to declare martial law to hold a new presidential election. In a tweet, Flynn appeared to endorse a call from We the People Convention to declare martial law. He added “Freedom never kneels except for God.” As someone who long criticized Flynn’s prosecution as abusive, his association is deeply disappointing. While it does not alter the view of the prosecution, it will alter the view of Flynn to support such a call. Continue reading “Flynn Retweets Call For Trump To Declare Martial Law To Hold New Elections”→
We have been discussing calls to pack the Supreme Court and President-Elect Joe Biden pledging to assemble a commission of experts to fundamentally change the Supreme Court after it added another conservative justice to the majority. Boston College Law Professor Kent Greenfield is already putting forward one such proposal: just replace the Supreme Court on constitutional questions. Greenfield calls for the establishment of a constitutional court that would strip the Supreme Court of the ability to rule on such question because “the Supreme Court needs a breather.” That “breath” however only became a perceived need for many academics when the conservative conservative on the Court grew to 6-3. Continue reading ““The Supreme Court Needs A Breather”: Law Professor Calls For Replacement of Supreme Court With A “Specialized Court” For Constitutional Questions”→
The long-awaited argument in Trump v. New York revealed a Court that seemed eager for an off-ramp rather than a merits ruling in the census dispute. Justices seemed skeptical of the Trump Administration’s interpretation of “persons” to exclude undocumented individuals while they also expressed skepticism that the Court needed to intervene at this stage. Notably, one of those expressing skepticism over the exclusionary interpretation was Associate Justice Amy Coney Barrett. I have previously stated that I believe the Administration’s interpretation is at odds with the long-standing meaning of “persons” under the Constitution as including all individuals residing in the United States regardless of their status. Some of the justices balked at micromanaging communications between a president and a federal agency in prohibiting certain information from being transmitted. One thing however stood out in the argument: the use of the term “illegal alien” by various justices, including Justice Sonia Sotomayor. The term has been denounced in some states and various universities as a “microaggression.” Continue reading “The Census Case: Did The Court Reject Micromanagement But Embrace Microaggression?”→
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]”→
Below is my column in The Hill on the possible nomination of Sally Yates as the next United States Attorney General. One of the names on the short list is Judge Merrick Garland who would not only be unifying for the country but unassailable at a confirmation hearing. However, Yates’ record raises serious questions about her judgment and actions at the Justice Department.
Former Trump campaign aide Carter Page on Friday has filed a $75 million lawsuit against the Federal Bureau of Investigation (FBI) and former high-ranking officials, including former FBI Director James Comey, and Andrew McCabe. The complaint includes eight claims that range from violations to the Foreign Intelligence Surveillance Act (FISA), Federal Tort Claims Act, a Bivens claim, and Privacy Act. It is very well written, but it will be challenging given the discretionary authority of justice officials in some of these actions. For full disclosure, I previously discussed Page’s case with both Page and his counsel (particularly after a column on his case). I have been a critic of his targeting for years and have spoken with Page on the investigation. I view Page as a victim of an abusive federal investigation and ideally he should be afforded relief for his treatment. Federal case law however presents barriers for people in his position. If he were to prevail, it could create important precedent protecting citizens and civil liberties for the future.
I’ll go out on a limb and make a proposal, based mostly on anecdotal observations I have made during my adult life of both politicians and elected officials–there is a difference–and what these individuals have often gotten us into. I have come to the conclusion that among the various cultivars of politics, the two positions that for me have consistently remained the most benevolently virtuous, and least damaging to ordinary people, are not the high-profile, ostentatious seats in various houses of parliament, legislatures, or a presidency. They are often the more behind-the-scenes, yet foundationally necessary public service elected officials often known as Water District and Sewer District Commissioners.
They might not be the most well-known, which in itself is an admirable quality, but they serve for me as a model of how we would be as a society better off if politicians adopted the approach of these commissioners and not that of petty tyrants or worse that seem to be attracted to politics.
The U.S. Supreme Court delivered a surprising blow to pandemic restrictions on house of worship in a late night order barring the enforcement of New York Gov. Andrew Cuomo’s Oct. 6 “Cluster Initiative” limiting attendance at religious services. Five justices (including newly installed Justice Amy Coney Barrett) blocked the limits while allowing the United States Court of Appeals for the Second Circuit to hear the merits in the case. Notably, Chief Justice John Roberts voted with the liberal justices but only because he felt that the order was not needed since the plaintiffs were not currently subject to the most severe limits. Continue reading “The Supreme Court Bars Cuomo’s Pandemic Limits On Houses of Worship”→
The Third Circuit has issued an opinion that has received little attention over the right to bear arms, but it should. The decision in Folajtar v. The Attorney General of the United States may be one of the most perfectly tailored case for major Supreme Court decision. Indeed, the only thing lacking from the 2-1 decision is a mailing label directly to Justice Amy Coney Barrett. In ruling that a non-violent tax conviction can result in the denial of gun ownership, the panel presents a clean case to further define the contours of the individual rights recognized in District of Columbia v. Heller, 554 U.S. 570 (2008). It is also an opportunity that any new justice would relish: after being the lone dissenter on a similar case, Barrett could be the critical vote (and even the author) on the opinion changing the area in line with her prior position.
There is an interesting fight brewing in Kentucky between Attorney General Daniel Cameron and Gov. Andy Beshear. Cameron has filed in support of a challenge to Beshear’s latest executive order closing religious schools to combat the pandemic. Beshear has correctly cited a major victory recently before the Kentucky Supreme Court — an unanimous decision in favor of his authority to issue pandemic orders. However, Cameron is seeking a higher standard of review by focusing on religious schools that could change the result. Continue reading “Kentucky Attorney Files Challenge To Kentucky Governor’s Closure OF Religious Schools”→
