This week, President Donald Trump has pledged that he will “override” state orders barring in-person religious services unless governors do so. As I have previously noted, the President is claiming authority that is expressly denied to him in our system of federalism. While I have warned such deference given to the states wanes with time, any order to reopen churches in a given state will be based on the inherent authority of the courts, not the President. This issue could be coming to a head with the split decision of a panel in the Ninth Circuit late Friday to uphold the order Gov. Gavin Newsom barring large in-person religious services. Early on in the pandemic, I wrote about how governors can shutdown churches under the Constitution. The Administration can, and has promised, joined legal challenges to such state orders but it is not claiming the inherent authority of presidents to “override” state decisions. The Justice Department has warned Newsom that his order is contravening constitutional rights.
Category: Politics
Former Vice President Joe Biden had a bad day yesterday after his statement during an interview with Charlamagne tha God on the radio show “The Breakfast Club” that “if you have a problem figuring out whether you’re for me or Trump, then you ain’t black.” To Biden’s credit, he came out an apologized. (Something President Donald Trump has consistently refused to do for comments like his statement that Jewish voters who voted for the Obama Administration “do not like Israel too much”). However, Atlantic staff writer Jemele Hill has kept the controversy brewing with her insistence that Biden’s statement that over a million such Black voters in recent polling are not really (as opposed to “technically”) black was “accurate.” The controversy raises some of the issues addressed recently in a column on the stereotyping of Trump supporters. [Biden is also facing a push back from the NAACP which said that, despite his repeated statements to the contrary, it has never endorsed Biden or anyone else.]
We have been having a spirited debate over the orders of U.S. District Judge Emmet Sullivan in the case of former National Security Adviser Michael Flynn. Now, the United States Court of Appeals for the District of Columbia has given Judge Sullivan ten days to respond to the motion for his removal. The language is not discretionary so Sullivan will likely to have address the two controversial orders issued after the filing of the motion to dismiss. In particular, he will have to state directly to the D.C. Circuit his understanding of his own discretion in such matters. I have maintained that the law in this areas is clear and that Sullivan has little ground upon which to deny this motion. Continue reading “A Call To Account: D.C. Circuit Gives Sullivan 10 Days To Defend His Flynn Orders”
Below is my column in USA Today on concerns over the recent orders of U.S. District Court Judge Emmet Sullivan. As leading lawyers, including a former Clinton U.S. Attorney openly advise Sullivan on how to “make trouble” for the Administration, these calls only magnify concerns over the purpose of these proceedings and whether they are increasingly detached from the merits of the pending motion. While many seem to relish the improvisational element, they risk undermining the judicial element of the proceedings. Flynn’s team has sought the removal of Sullivan (a very difficult proposition, particularly in the D.C. Circuit). The intense opposition in the bar and teaching academy to Trump seems again to have greatly distorted the legal analysis, which fails to address the most troubling aspects of these orders. As I have previously acknowledged, there are good-faith arguments to be made but much of the analysis has ignored the strong precedent against a denial of the motion and rarely even acknowledge the serious implications for the rights of defendants in such action. I address some of the countervailing (and in my view controlling) authority in a separate posting.
Notably, the D.C. Circuit gave Judge Sullivan ten days to respond to the motion seeking his removal. Thus, these issues will presumably be addressed by Judge Sullivan before any hearing is held.
Here is the column: Continue reading “The Flynn Court Drifts Dangerously Outside Judicial Navigational Beacons”
We have been discussing the hypocrisy in the response of Democratic politicians, media outlets, and many commentators in their response to the allegations of sexual assault by former Vice President Joe Biden as compared to their position against Justice Brett Kavanaugh. This has included an opposition to simply opening up the Biden papers for a search of any sexual harassment or assault allegations made against him. This has included statements from leading figures that they believe Biden did sexually assault Biden staffer Tara Reade but would still endorse him. None however have gone quite as far as Nation columnist Katha Pollitt who has declared that she would support Biden “if he boiled babies and ate them.” Biden has not issued any position on such infanticide but politicians have long opposed the practice since the demise of Cronus. Putting any humor aside, the statement does show how rigid and fanatical both sides have become in this election. While Democrats have long denounced Trump for saying he could shoot someone on Fifth Avenue, Biden supporters like Pollitt have said equally disturbing things about their blind loyalty. More importantly, this sense of a mission is manifested in much of the legal and media analysis that we have discussed on this blog on both sides of the political spectrum.
Continue reading “Columnist: “I Would Vote For Joe Biden If He Boiled Babies And Ate Them””
Ukrainian President Volodymyr Zelensky has announced that a formal criminal investigation has been launched into then-Vice President Joe Biden’s demand that Ukraine’s former president, Petro Poroshenko fire the country’s lead prosecutor in exchange for U.S. aid. Critics, and President Donald Trump has long argued that Biden was seeking to end an investigation into Burisma, an oil company that gave his son, Hunter, highly suspicious payments as a board member. The investigation will now go forward as the Senate issued the first subpoenas of its own on the Biden-Burisma scandal.
Continue reading “Ukraine Orders Investigation Into Biden Controversy After Release Of Tape”
There is yet another criminal allegation being raised by legal analysts against President Donald Trump. It seems that every controversial statement by Trump is immediately reframed in criminal terms by the very same experts who declared a myriad of other crimes over the last three years. The latest criminal allegation stems from Trump’s tweet that claimed Michigan’s Secretary of State “illegally” sent absentee ballots to all of the state’s voters. He then threatened to withhold federal funds in response. I criticized that tweet as dubious in its underlying authority and reckless in its implications during a pandemic. However, such objections are pathetically insufficient in the age of rage. So the tweet must be a federal crime. Once again, legal sites reported the views without a single voice opposing the dubious legal analysis. [Update: one of those referenced has responded so I updated the blog below to include his position]
For decades, the legal community has decried common practices used by prosecutors to coerce pleas from defendants. Prosecutors often stack up charges and then drain defendants until they agree to pleading guilty. There was a time when such abuses were regularly called out in leading newspapers. These are not those times. Continue reading “Out Like Flynn: How the Media Embraced Prosecutorial Misconduct As An Article Of Faith”
President Donald Trump and the White House appear to have violated a 2019 federal court order that it cannot block twitter accounts from the official White House account, @realDonaldTrump, based in the content of its tweets. The account, @realDonaldTrFan, has over 313,000 followers and savages the President regularly with parodies. If the site was blocked as reported, the action would be a flagrant disregarding of the authority of the federal courts.
Continue reading “White House Blocks Twitter Account In Apparent Violation Of Court Order”
We have previously discussed the uncertain standard applying to teachers and professors who are subject to discipline for social media postings. It often seems that any termination or discipline is based upon subjective or majoritarian views of the content of postings. The latest such case is out of Catholic University of America where adjunct professor John Tieso has been suspended after tweets ridiculing Barack Obama and Kamala Harris after working for the school since 2013. Tieso told the site The College Fix that he is considering legal action.
For years, many of us who have long supporteded the American Civil Liberties Union (ACLU) have grown alarmed by its abandonment of core principles in the support of civil liberties in favor of support what seems a more political agenda. Under the leadership of a President Susan N. Herman and Executive Director Anthony Romero, the ACLU has dropped support for unpopular causes while aligning itself more closely with the Democratic Party’s position on issues ranging from immigration to sexual harassment. I have spent my life supporting the ACLU and speaking at its conferences. It has been very painful for many of us in the “Old guard” as these political advocates have taken over the board and organization. That has been evidenced as the ACLU moved to develop a more nuanced approach to “hate speech” after criticism following the Charlottesville protests. Free speech protection was once the touchstone of the ACLU which was fearless in its unpopular advocacy. It is now an area of open retreat for the organization as the leadership seeks to appease irate donors. Despite the right to carry being a constitutional right, the ACLU has indicated that it will not vigorously support the right to lawfully carry weapons at protests. That is no more evident than in the truly shocking filing of the ACLU to oppose due process rights for students at our colleges and universities, particularly in the imposition of a higher and more consistent evidentiary standard. While I found aspects of the brief to raise compelling points, the thrust of the brief is an attack on basic evidentiary protections that would have once been viewed as a position fundamentally at odds with the organization’s mission.
Below is my column in The Hill newspaper on how the media seems confused by polls that not only fail to show former Vice President Joe Biden surging but some showing Trump pulling ahead with voters. The problem is that the media has never shown any real interest in understanding Trump voters, preferring to stereotype them as racists, as done in a recent Washington Post column. The truth might be found in a famous Stanford experiment called “Bobo the Clown.”
Here is the column: Continue reading “Bobo The Clown’s Revenge? How The Media Is Reelecting Donald Trump”
For weeks, we have discussed how the media, Democratic members, and a wide variety commentators have adopted a different standard in dealing with the allegation of sexual assault against Joe Biden. As soon as the presumptive Democratic nominee was accused, the rallying cry from the Kavanaugh hearing that “all women must be believed” was dropped. This week, the question may not be the applicability of the Kavanaugh standard but the Sessions standard. The recent declassification of documents shows that United Nations ambassador Samantha Power sought to unmask Michael Flynn’s name not once but on at least seven occasions. Yet, Power insisted that she had no recollection of even a single such request. When former Attorney General Jeff Sessions said that he had “no recollection” of meetings or other details, Democrats called for his prosecution for perjury. Will the Sessions’ standard apply to Power, or is this another example of standards changing with the affiliation of the accused? Continue reading “Did Samantha Power Commit Perjury? It Depends If The Sessions Standard Applies.”
Below is my column in The Hill newspaper on the contradictions revealed in recent disclosures, including the list of officials seeking to “unmask” the identity of former National Security Adviser Michael Flynn. There seems a virtual news blackout on these disclosures, including the fact that both former President Barack Obama and former Vice President Joe Biden followed the investigation. Indeed, Biden’s name is on the unmasking list.
Here is the column: Continue reading “The Unmasking of Joe Biden”
On Friday night, President Donald Trump fired the State Department’s Inspector General Steve Linick in a troubling and potentially unlawful act. We previously discussed the President’s firing of then-Inspector General for the Intelligence Community Michael Atkinson for his role in the whistleblower complaint that prompted the Ukraine probe — a move that I criticized. He also fired the inspector general overseeing pandemic relief, Glenn Fine. The firing of Linick when his office was reportedly investigating the alleged misuse of public resources by Secretary of State Mike Pompeo is arguably in violation of federal law and in my view worthy of investigation by both houses. The Inspector General system plays a vital role in combatting corruption and abuse. The President’s actions against multiple inspectors general constitute one of the greatest challenges to that system since its founding.
Continue reading “Trump Fires The State Department’s Inspector General [Updated]”