Laura Loomer from the conservative website The Rebel ran on to the stage on Friday of the controversial production of Julius Caesar in Central Park. The show has been criticized for its characters modeled on President Donald Trump and others. Trump, as Caesar, is killed in the show to the delight of the crowd. Many find the show to be distasteful and hateful. However, for those of us who have actively criticized liberals who shutdown conservative speakers on campuses and other public events, this is an equally objectionable effort to stop free speech. Indeed, it seeks to prevent both artistic and political expression.
Democrats are clamoring for the resignation of Attorney General Jeff Sessions this week in the wake of his testimony before the Senate. I fail to see the good-faith basis for these calls, particularly after his testimony. Sessions shot down the claims of a third meeting with Russians that was the subject of breathless media reports for days. He also did an excellent job in explaining the steps that he took in recusing himself, including declining to play any role in the Russian investigation long before his formal recusal. He was also on good ground in declining to discuss conversations with the President in the Oval Office. Despite the shock expressed by Democratic Senators, he is in a long line of cabinet members declining to disclose such presidential communications. Nevertheless, the Democrats were right that you should have a formal invocation of executive privilege before declining to answer questions from Congress. However, as discussed in the column below, that is not uncommon.
Yet, the Administration had just gone through a controversial hearing with top intelligence officials refusing to answer such questions and clearly knew that these questions were coming. What did not make sense in the testimony of National Security Agency director Adm. Mike Rogers and National Intelligence Director Dan Coats was their refusal to answer on the ground that it would be “inappropriate.” That makes no sense in isolation without an indication that the questions will be reviewed and addressed by White House counsel in whether executive privilege will be invoked. The same problem arose with the testimony of Sessions (which was magnified by the fact that the White House has been pummeled over the earlier hearing).
The White House should have simply invoked the privilege with regard to presidential communications in the Oval Office in advance while stating an intention to try to answer as many of the questions of the Committee as possible within those long-standing constitutional confines. It is not unheard of to decline to answer questions pending review but Sessions did not promise to have questions reviewed. If he does not secure an invocation (or permission to disclose), he would simply be refusing to answer questions of Congress which constitutes contempt of Congress. This is not necessary. The White House Counsel should have sent a letter in advance of the hearing either invoking or waiving privilege. Alternatively, he needs to send a letter to address the outstanding questions. Congress has a right to have its questions answered unless the White House claims privilege. Even with an invocation, Congress can overcome the privilege with a proper showing to a court. The process requires a firm answer from the White House on the basis for refusing to answer questions and it cannot be a categorical denial based on unease or discomfort.
Here is the column in the Hill Newspaper.
New Jersey Gov. Chris Christie (R) is close to reaching a statistical zero for support. According to a new poll, Christie is supported by only 15 percent of voters. Given the error rate of standard polls, Christie is rapidly reducing his support to his immediate family. This is the lowest approval rating “for any governor in any state surveyed by Quinnipiac University in more than 20 years.”
This includes a now 81 percent disapproval rating. Yes, you read that correctly. Eighty-one percent disapproval.
Washington was awaken this morning with our now regular sound of a tweet from the President. At 6:55 am, President Donald Trump blasted the report that Justice Department special counsel Robert Mueller is now investigating him for obstruction of justice. He called the whole thing based on a “phony story” — a likely dig at former FBI Director James Comey. I previously raised my concern about the alleged leak from the Special Counsel’s office. The fact that the office is investigating obstruction is hardly news. Even those of us who have expressed substantial reservations about the legal basis for an obstruction charge against the President have said that there was ample reason to investigate such allegations. However, the leak in the Washington Post undermines the credibility not of the President but the Special Counsel. Similarly, I have previously said that these tweets from the President are highly damaging to both his public and legal case. Recent polling finds that only one in five voters support Trump’s firing of Comey and a majority now believe that he did meddle in the Russian investigation.
The Washington Post is reporting that Special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 election has now expanded to look into whether President Donald Trump attempted to obstruct justice. What is most notable is not the investigation of obstruction of justice. Rather it is the fact of the leak that is alarming. Former FBI Director James Comey (who followed Mueller at the Bureau and has had a long relationship with Mueller) just admitted to leaking damaging information against Trump. Comey, who was tasked with investigating leakers, became a leaker himself. Now, the Special Counsel’s office is accused by Trump’s counsel of leaking informing damaging to Trump — an office that could be asked to consider unauthorized leaks as part of its investigation. While such leaks could come from witnesses, those witnesses appear in large part high-ranking members of the Trump administration unless they came from a briefing with members of Congress.
President Donald Trump has pledged to reduce red tape and regulations for businesses in the United States. It is a worthy goal, but it has led to some curious decisions. For example, the Administration just tossed a new rule intended to limit the numbers of endangered whales and sea turtles getting caught in fishing nets. This rule however was supported by the fishing industry. Thus, this was a rare case where conservationists and corporations agreed. It was the Trump Administration that did not agree. Not only was the rule proposed by the Pacific Fishery Management Council had proposed the new regulation in 2015, but the federal government has been implementing the plan.
There is an interested article in the Washington Post entitled “As A Prosecutor, Kamala Harris’s Doggedness Was Praised. As a Senator, She’s Deemed ‘Hysterical.'” The Los Angeles Times also described Harris’ style as prosecutorial in nature and referenced her skills in court examination. The articles raise a common comparison between court and congressional hearings in terms of questioning. When I served as lead counsel in the last impeachment, I constantly spared with Senators over the failure to follow basic rules of evidence or practice. The Senators would respond that such rules do not apply to them — which is technically correct though good practices are not always required practices.
Former Trump aide Jason Miller was confronted by USA Today columnist over his description of Harris as “hysterical” in the hearing. Her point is a valid one but the Washington Post suggests that this type of questioning would be considered praise worthy in a prosecutor. The comparison between actual litigation and congressional examinations is an interesting one. I have great respect for Sen. Harris and her experience. However, while her questioning began well, it quickly fell into improper questioning if viewed from a litigation viewpoint. As a criminal defense attorney, I can say that it would not only be viewed as improper but judges would immediately sustain objections to such badgering of a witnesses. Indeed, I was surprised watching the hearing as Democratic senators pummeled Sessions with questions and demanded rapid answers. Sessions had just been attacked for failing to fully and truthfully answer an earlier (and rather unclear) question from Sen. Al Franken. Now however they were giving him rapid questions and cutting off his answers. Harris was the most extreme in that respect.