This afternoon, I am testifying on the hearing on the controversy surrounding the clearing of Lafayette Park on June 1, 2020. I was called to appear to address the underlying legal and constitutional standards governing such mass demonstrations. For roughly 14 years, I was one of the lead counsels in the World Bank litigation that helped establish guidelines and case law governing such operations. I have been critical of the force used to clear the park as well as the attack on a team of Australian journalists covered the protests.
The operation to clear the Park began two days before with the plan to install fencing. By Monday, a small barrier was in place around the park itself and the clearing operation was to push back the crowd to a perimeter to allow the higher fencing to be installed beyond the range of debris or objects. The crowd was pushed back to I St. from H St. by the line of officers. (The hearing title and the testimony refers to the “Lafayette Park” or “Lafayette Square Park” generally. In fact, the immediate park was closed off and we are discussing the operation to clear the area for the installation of the higher fence).
As I state in the testimony, I believe the order to clear the area would be found lawful. It is the level of force (and a charging of the line of officers) that is likely to be the focus of any court. I still do not see the need for this level of force in the use of batons and pepper spray.
Below is my column in The Hill newspaper that looks at three different stories attacking Attorney General Bill Barr as acting unethically and corruptly from the Flynn case to the Berman decision to the Cohen case. I have not hesitated to criticize Barr on his policies or actions. However, these are based on long-standing differences over constitutional and legal issues. It is the character attacks that I found notable in last week’s stories particularly in the absence of supporting evidence.
Below is my column in USA Today on the D.C. Circuit ordering Judge Emmet Sullivan to dismiss the case of former National Security Adviser Michael Flynn. After this column ran, new evidence emerged that further undermined the FBI and the targeting of Flynn, as discussed in another recent column. Notes from fired FBI Special Agent Peter Strzok show that former FBI Director James Comey told President Barack Obama and Vice President Joe Biden that Flynn’s call to the Russian diplomat “appear legit.” Nevertheless, Biden (who denied having anything to do with the case) is noted as raising the idea of a charge under the facially unconstitutional Logan Act, a law that has never been used successfully to charge a single person since the beginning of this Republic. Comey of course was the one who later bragged that he “probably wouldn’t have … gotten away with it” in other administrations, but he sent “a couple guys over” to question Flynn, who was settling into his new office as national security adviser. We now know that, when Comey broke protocols and sent the agents, he thought the calls were legitimate and that agents wanted to dismiss the investigation in December for lack of evidence. They were prevented from doing so as Strzok, Biden, and others discussed other crimes, any crime, to nail Flynn just before the start of the Trump Administration.
If all of that seems “illegitimate” and “irregular,” it pales in comparison to how two judges on the D.C. panel viewed the handling of the Flynn case by Judge Emmet Sullivan. It seems that everyone from the President to the Vice President to the FBI Director to ultimately the federal judge have engaged in a dangerous form of improvisational law when it came to Michael Flynn. That will now hopefully end though many questions still remain.
It is possible for Judge Sullivan to appeal, though the upcoming hearing on Flynn has been removed from the docket.
George Washington University President Thomas LeBlanc surprised many faculty members yesterday with a public declaration of the university for making the 51st state. There is considerable support for statehood at the university but there is no indication that the faculty voted on such a declaration and there is no indication that even the Board as a whole voted on the matter. Some of us have long maintained that, regardless of the merits of a political measure, the university should avoid speaking for the entire institution out of respect to myriad of different voices and views represented in our community. This could well be a question upon which we should abandon our traditional neutrality as an institution and speak as one voice. As one of the oldest institutions in the city, the university may have legitimately wanted to be heard on the question. Yet, even when the school chooses to do so, faculty governance values warrant that the faculty should be given an opportunity to be heard. The staff and students also deserve to be heard as part of this process. This specific legislation has been pending for months and we could have presented the matter to the faculty, staff, and students for their input. If we did, I am not aware of it and the university did not suggest that such a vote was ever taken by the community. I have asked other faculty who were also unaware of any vote by the faculty, students or staff. The university itself could not cite any prior vote after an inquiry. The result is not necessarily different but the process is important. I would feel the same way (indeed more so) if the University announced opposition to D.C. statehood without faculty, staff, and student participation.
Below is my column in The Hill on the ongoing destruction of memorials and statues. After this column ran, I learned that one of the iconic busts of George Washington University had been toppled on my own campus. I did not learn that from our university, which was conspicuously silent about this destructive act at the very center of our campus. There is something eerily familiar in the scenes of bonfires with police watching passively as public art is destroyed. Such acts are akin to book burning as mobs unilaterally destroyed images that they do not want others to see. There are valid issues to address on the removal of some public art but there is no room or time for debate in the midst of this spreading destruction. Even when there is merit to objections to literally or artistic or historical works, mob action threatens more than the individual work destroyed by such action. The media has largely downplayed this violence, including little comparative coverage of an attack on the Democratic state senator who simply tried to videotape the destruction of a statue to a man who actually gave his life fighting against slavery in the Civil War. As discussed earlier, history has shown that yielding to such mob rule will do little to satiate the demand for unilateral and at times violent action. People of good faith must step forward to demand a return to the rule of law and civility in our ongoing discourse over racism and reform.
The Daily Beast is out with another breathless account of the sycophantic, corrupt influence of Attorney General William Barr. The article entitled “Barr Reportedly Told DOJ Officials to Try and Undermine Michael Cohen’s Conviction” adds the subheading “The attorney general insists, meanwhile, that it’s nothing but a ‘media narrative’ to suggest he’s acting in the president’s personal interests.” The article bounced off a piece in the New York Times. The thrust of both the headlines and the story capture the total decoupling of reporting from factual or legal foundations. It could be denounced as a hit job but it completely misses its mark.
The Supreme Court delivered a big win for the Trump Administration on immigration today with a 7-2 ruling that it may deport asylum seekers without allowing them to present their cases to a federal judge. It is a major component of the Administration’s effort to expedite deportations and discourage the use of asylum claims as a way of extending stays in the United States. The case is Dept. of Homeland Security v. Thuraissigiam.
New York Times Magazine reporter Nikole Hannah-Jones was one of the journalists who denounced the New York Times for publishing the views of a conservative U.S. Senator on the use of troops to quell rioting in U.S. cities. Hannah-Jones applauded the disgraceful decision of the Times to apologize for publishing such an opposing viewpoint and denounced those who engage in what she called “even-handedness, both sideism” journalism. Now Hannah-Jones has deleted a tweet advancing an anti-police conspiracy theory. When Hannah-Jones and others objected to the publishing of the views of Cotton, opinion editor James Bennet was rustled out to make a pleading apology. That however was not enough. He was later compelled to resign for publishing a column that advocates an option used previously in history with rioting. Unlike the editor of the Times, however, such theories are not viewed as cause for resignation or “both sideism.” The concern for many of us is that the media is not just losing its touchstone of neutrality but continues to apply vastly different standards for journalists and editors, even at the same newspaper.
In an extraordinarily rare action, the United States Court of Appeals for the District of Columbia has ordered the dismissal of the case against former National Security Adviser Michael Flynn. The mandamus order could well be unique and was based on clear disagreement with the actions of U.S. District Court Judge Emmet Sullivan along many of the lines that I previously discussed in columns (here and here and here and here and here). Short of an order to remove Sullivan, this is the most stinging possible rejection of the prior orders and conduct by the Court. I have a column in USA Today on the decision.
The House Judiciary Committee will be holding a hearing today on the allegations of political interference with the handling of Justice Department cases, including the controversy over the sentencing recommendations in the prosecution of Roger Stone, a longtime friend and confidant to President Donald Trump. As I said on NPR this morning, I think such hearings are important and legitimate efforts to answer such widespread concerns. (The hearing is stacked with only one witness allowed in defense of the Administration but that is unfortunately a long-standing problem in Congress). Even though I support the congressional inquiry, I continue to believe that the sentencing recommendation in Stone was excessive and unwarranted. I admittedly have a bias as a long-standing criminal defense attorney but I criticized the original sentencing memorandum before any action was taken by Main Justice. I have always maintained however that Stone was corrected convicted on some of these counts and warrants some jail time for his criminal conduct, including opposition to any presidential pardon.
NBC correspondent Andrea Mitchell and Delegate Eleanor Holmes Norton (D-D.C.) had a bizarre encounter yesterday when a man dressed only in a bra and panties rushed them near Black Lives Matter Square and the area claimed earlier as the “Black House Autonomous Zone.” Mitchell immediately asked “where’s the police” and Norton added “where’s the police when you need them?” It is a question that many of us have been asking D.C. officials for weeks as police have stood by and watched statues destroyed and defaced around the city. This week, D.C. Chief of Police Peter Newsham stated that his department has made the “tactical decision” not to intervene as certain statues have been torn down in front of them. I have been highly critical of both this destruction and the failure of D.C. officials to act, including the iconic bust of George Washington on my own campus at George Washington University.
We have been discussing the destruction of statues and public art in the recent protests, including a new column this morning. I have been highly critical of the defacing of our monuments and destruction of public art. Now the destruction has reached my own campus. The Hatchet reports that one of our iconic busts of George Washington was torn from its foundation on campus. It has not however been discussed by the University or attributed to protesters.
CNN’s legal analyst Asha Rangappa is calling for the impeachment of Attorney General Bill Barr. Rangappa claims that Barr “tried to bamboozle the country” in the recent controversy over the replacement of Geoffrey Berman, who until Saturday had been the U.S. Attorney for the Southern District of New York. She further states that there is no ability for the Inspector General to investigate any improper conduct despite evidence that “Barr was attempting to obstruct justice by removing [Berman]. There is no such evidence and the call for impeachment shows a continuing misconstruction of the history and standard for impeachment.