We discussed earlier how Donna Brazile, the former chair of the Democratic National Committee and CNN commentator, denied the legitimacy of emails that showed her leaking a question to Hillary Clinton that would be asked verbatim at the CNN downhill event. I was highly critical of the failure of the media to investigate the claim, including confirming the receipt of the earlier emails from Clinton communications director Jennifer Palmieri. Brazile stuck by her false statements even after additional emails allegedly showed Brazile secretly feeding information to the Clinton campaign. Again, there was relatively little media attention to the story and CNN initially issued a remarkably weak response that it was “uncomfortable” with the new disclosures on Brazile’s actions while a CNN commentator. While CNN Worldwide President Jeff Zucker later called Brazile’s actions “disgusting” and others have denounced her actions and later contradictions, the DNC stuck with Brazile — even praising her post-scandal appearance before staffers (with one notable exception). Then, the declassified intelligence report directly disputed what Brazile has said. Yet media remained relatively passive and again failed to press Palmieri on the issue. Now, Brazile has admitted that she gave the questions to the Clinton campaign in a Time magazine essay. She simply says it was a “mistake” but does not address her lying to the media. Again, the coverage is quite limited and no one has asked Palmieri how she remained silent despite knowing that Brazile was lying and misleading the public. Palmieri is now a regular guest on various news outlets.
Category: Politics
The Senate Judiciary Committee has released the schedule and witness list for confirmation hearing of Judge Neil M. Gorsuch for the United States Supreme Court. I have been called as a witness for the majority and will likely testify on Wednesday or Thursday. The hearings will begin on Monday. Questions for Judge Gorsuch will begin on Tuesday and likely continue into Wednesday.
Continue reading “Gorsuch Hearing To Start Monday; Turley To Testify On Thursday”
Yesterday’s press conference by White House Spokesman Sean Spicer seemed uncomfortably close to a Saturday Night Live parody as Spicer spared with CNN and other news outlets over President Trump’s wiretapping allegations. I actually was sympathetic with Spicer on one point: the media continues to take a literal meaning of Trump’s reference to “wiretap.” Some after the first tweet, I stated on CNN that I did not believe that Trump was speaking literally and that he likely meant “surveillance.” I have written and litigated in the field of surveillance over the course of decades and the use of “wiretap” to mean surveillance is a common, if inartful, practice — particularly among older Americans. That does not mean that Trump’s allegation of surveillance is true or supportable. That should be the focus, not this recurring rhetorical point. However, there has been a truly shocking lack of discipline among high-ranking Trump staffers in their public comments, including comments that have undermined the immigration orders. A good example of that ongoing problem is the suggestion that British intelligence surveilled Trump for Obama. This allegation had no place in a White House briefing and led to a reported embarrassing apology from the Administration to the British and a promise not to repeat it. It appears that there was no James Bond contract to surveil and the Administration is again shaken not stirred scripted. [UPDATE: CNN is reporting late Friday that Sean Spicer has denied that any apology has been made to Britain. For its part, Fox News reportedly is saying that it has no support for the allegation raised by Judge Napolitano]
Despite a surprising lack of media attention, the Ninth Circuit saw a relatively rare filing of a dissent in the appeal of the first executive order. Critics of the order have celebrated the panel decision, though many of us (including opponents of the immigration order) criticized the opinion as poorly written and supported. Nevertheless, critics have said that four judges in that case ruled against the President. (That is not counting Judge Brinkema in Virginia). However, the count is now roughly even for the first appeal of the order. In a surprising move, five judges (including the highly respected former Chief Judge Alex Kozinski) filed a dissent to the motion for rehearing. The blistering dissent showed that a significant number of Ninth Circuit judges strongly disagreed with the decision of the panel. (Some judges may have not approved of the panel decision but did not see the need for a rehearing). As previously raised by experts, the strongly worded dissent belies the claim that the original executive order was legally unsustainable. To see this type of vociferous dissent in a withdrawn appeal is remarkable in itself but it also shows the depth of opposition to the panel’s decision among other judges.
Last night, U.S. District Judge Derrick K. Watson issued a
temporary restraining order that prevents the second immigration order of President Donald Trump from going into effect on Thursday. The 43-page opinion is scathing and relies not only on the statements of President Trump but the recent statements of his chief aide Stephen Miller. While I respectfully disagree with Judge Watson and view his decision as contrary to the weight of existing case law, the opinion again shows the perils of presidents and their aides speaking publicly about litigation. Political facing saving comments can be case legal damaging comments. Yet, I still believe that Judge Watson relied too much on campaign statements and television interviews to overcome the facial neutrality of the language of the executive order.
Continue reading “Federal Judge In Hawaii Enjoins Second Executive Order”
Below is my recent column about a type of new article of faith for lawyers in opposing President Donald Trump and his Administration. Here is the column:
Continue reading “Opposing Trump Is The New Article Of Faith For Lawyers”
The build up last night on MSNBC had my phone ringing off the hook. Rachel Maddow proclaimed “we’ve got the Trump returns.” It turned out to be just the 2005 filing. Well, not the 2005 filing, the first two pages. Worse yet, it turned out to be an entirely predictable tax return for a wealthy businessman with tons of deductibles. It seemed like the tax version of Al Capone’s safe with Geraldo Rivera. What was particularly odd is that MSNBC was “all in” — even after seeing that there was little there. Maddow led with a long list of things we want to know from Trump’s tax return. But none of those things were in the return. They lined up experts who seemed a lot like the “weather center” reporters the night before covering the major snow storm in D.C. Reporters literally showed a dusting on cars in parking lots and spoke breathlessly about the possible storm that never came. The tax experts were left in the same curious position — discussing what might have been shown. As a legal commentator, I bowed out. It was like being called as a seismologists to discuss an earthquake that never happened. It is certainly true that Trump and Melania paid is a rate of less than 4 percent on their personal income — $5.3 million. However, they paid an additional $31 million under the alternative minimum tax, or AMT. They used every loophole and tactic to reduce payments but those loopholes were legal and used by many in his tax bracket.
Having said that, the White House and others went too far in raising allegations of criminal conduct by Maddow and MSNBC in reporting on the story. There was also a return to the mantra of the “dishonest media.” There was nothing dishonest in publishing the return. It was clearly overplayed but it was not dishonest to cover the leak.
We have been discussing the mounting evidence of catastrophic impacts from climate change. A new report is particularly . . . well . . . chilling. Scientists believe that the world has now lost half of its coral reefs in the last 30 years and could lose 90 percent 2050. It is not just the loss of one of the most unique and beautiful areas of Earth but the impact could be enormous on our food and our environment. Indeed, these reports show how these losses produce a cascading crisis across ecosystems. The report comes at a time when the Trump Administration is moving to reduce our commitment to climate change programs and agreements — putting the United States on a collision course with much of the world.
Continue reading “Study: 90 Percent of Coral Reefs Will Be Gone By 2050”
Below is my column in The Hill newspaper on the reappearance of Obama officials in the contemporary debates over surveillance and health care. Here is the column.
The United States Attorney for Manhattan, Preet Bharara, appears to believe that he is working for a different branch of government. After Attorney General Jeff Sessions asked for the resignations of all U.S. Attorneys, a standard change of political appointees in a new Administration, Bharara reportedly indicated that President Donald Trump would have to fire him. Just as with the bizarre conduct of Sally Yates as Acting Attorney General, Bharara has shown a curious understanding of this position and his obligations as a federal officer. If these media reports are true, President Trump should immediately accommodate him and Bharara will have to explain to future employers how he justifies such an unfounded stance. [Update: Bharara has been fired]
I sincerely hope that the reports are not true or that Bharara quickly reconsiders and gets his letter of resignation in today. This is not the way to close a successful career as U.S. Attorney. In the end, I am not sure what the basis for refusing a letter of resignation is. Bharara seems a rebel without a cause.
Continue reading “Fire Me: U.S. Attorney In Manhattan Reportedly Refuses To Resign [UPDATED]”
I have great respect for Harvard law professor Lawrence Tribe, who remains one of the iconic figures in constitutional law and someone with whom I have had exchanges for years on legal controversies affecting this country. While I was not surprised to see that we disagreed on a constitutional issue related to President Donald Trump, I was surprised to see that he took literally a comment that I made as a joke about impeachable tweets on Morning Joe recently. Tribe ironically responded in a series of tweets to the comment. The more serious problem is that I considered the suggestions of impeachment over Trump’s criticism of President Obama to be laughable. They clearly are not to Professor Tribe. It is something of a reversal of roles since both Tribe and I testified during the Clinton impeachment hearings where he suggested a narrower definition of the constitutional standard while I argued that Clinton could be impeached for an act of perjury.
Continue reading “Impeachable Tweets: A Response To Professor Tribe”
I recently criticized the ethics complaint filed against Presidential Advisor Kellyanne Conway by 15 ethics law professors. For full disclosure, Conway is one of my former students at George Washington University Law School (she graduated in 1995). I criticized the complaint as highly political with little foundation. The only aspect of the complaint that was not frivolous was the allegation that Conway violated the federal rule against endorsing commercial products in light of her comments about Ivanka’s line of clothing and jewelry. As I stated, Conway did violate the rule and I believe that she should have been punished with an official reprimand or some other equivalent measure. However, I viewed the violation as part of a tongue-in-cheek retort to the controversy. The White House reached the same conclusion that there was no “nefarious” intent but it also declined to impose any formal punishment. That decision has led to a relatively rare rebuke fromOffice of Governmental Ethics Director Walter Shaub. Referring to Conway’s “free commercial,” Shaub expressed dismay over the failure to impose any punishment and further chastised deputy White House counsel Stefan Passantino for his explanation for the lack of any discipline.
I have been a long critic of Germany’s criminal speech laws, including its long criminalization of Nazi symbols. Now, Sven Pohl, 37, is facing charges in Germany for “heavy drug trafficking” after he triggered a raid due to his posting of a Nazi-themed breakfast. The police arrived being found with massive quantities of methamphetamine and marijuana.
Continue reading “Mein Meth: German Arrested After Posting Hitler Toast”
We just discussed the move in Hawaii to secure a new restraining order to cover the second Trump executive order. That was the most likely move that we previously discussed. The other option was to seek to extend the existing restraining order to cover the second executive order on the grounds that there was not a substantial change. That is the option that Washington state is taking. Today, Washington state Attorney General Bob Ferguson indicated that he will ask that Judge James Robart’s Feb. 3 ruling be extended on the grounds that the second Executive Order contains the same alleged violations as the first.
Continue reading “Washington State To Move To Extend Restraining Order To Second Executive Order”
The United Arab Emirates have supplied the most recent example of the Sharia legal system in the Muslim world. South African Emlyn Culverwell‚ 29, and his Ukrainian fiancée Iryna Nohai, 27, were arrested after Nohai wemt to the doctor over stomach pains. In the UAE doctors appear to have no notion of confidentiality (or humanity) and informed the police when he discovered that she was pregnant. Since she had not yet married Culverwell, that meant that they had violated the Islamic code against sex outside of marriage — even though the impregnation occurred outside of the UAE. They are criminally charged.