Category: Politics

Columns, Congress, Constitutional Law, Criminal law, Politics

Stooge or Savior? Whitaker’s Actions Will Define Him And His Office

Matthew_G._Whitaker_official_photoBelow is my column in The Hill newspaper on the selection of Matthew Whitaker as Acting Attorney General. While I believe that Whitaker meets the criteria under the Federal Vacancies Reform Act, I have great reservations about that Act’s constitutionality in allowing unconfirmed individuals to serve in this position, as discussed in my prior column.  However, I do not believe that prior commentary as an attorney requires recusal under Justice Department rules.  Whitaker is about to establish a legacy as either a political stooge or principled lawyer.

Here is the column: Continue reading “Stooge or Savior? Whitaker’s Actions Will Define Him And His Office” →

Constitutional Law, Media, Politics

CNN Reportedly Considering Lawsuit Over Acosta Access

200px-Cnn.svgI have previously criticized the White House for suspending the access of CNN Chief White House Correspondent Jim Acosta.  While I believe that Acosta was wrong in refusing to yield the mike at a former press conference, the White House should restore his access.  That, however, does not mean that the suspension would be viewed as an actionable legal case.  CNN is reportedly considering such a lawsuit and Floyd Abrams, a constitutional law expert, is quoted as saying that CNN would have a “really strong lawsuit” against the White House.  I am not so confident despite my agreement with CNN on the merits of the action.  My concern is how a court would craft the standard for such review in having a right to a press pass.  Moreover, whatever due process claim can be raised, the burden is likely to be modest. Continue reading “CNN Reportedly Considering Lawsuit Over Acosta Access” →

Academia, Constitutional Law, Politics, Society

Turley To Debate Toobin On Impeachment in Dallas On Monday

maxresdefaultturley-captureThe National Constitution Center and the Old Parkland Debate Series has announced that a debate will be held on November 12th between George Washington Professor Jonathan Turley and CNN senior legal analyst Jeffrey Toobin on impeachment.  The debate will occur a week after the 2018 midterm elections and many have called for the impeachment of both President Donald Trump and Judge Brett Kavanaugh following a Democratic takeover of the United States House of Representatives.  The debate question is: Resolved, the framers designed impeachment as a political, rather than a legal process.  Toobin will argue that the Framers intended impeachment to be a political judgment while Turley will argue that the Framers intended more of a legal judgment. Turley was the last lead counsel in an impeachment trial in the Senate and Toobin previously worked for Independent Counsel Lawrence E. Walsh.

Continue reading “Turley To Debate Toobin On Impeachment in Dallas On Monday” →

Bizarre, Media, Politics

Trump Attacks Reporter For Merely Asking About Reining In Mueller

donald_trump_president-elect_portrait_cropped200px-Cnn.svgI have been highly critical of President Donald Trump’s treatment of the media and his personal attacks on journalists.  A chilling example is his response to CNN’s Abby Phillip when she merely (and reasonably) asked if Trump wanted to “rein in” Mueller with his appointment of Matt Whitaker. It was not just a relevant question but the one most asked by journalists of all of the networks from Fox to CNN to BBC.  Yet, Trump called it a “stupid” question and then attacked Phillip’s overall performance. Continue reading “Trump Attacks Reporter For Merely Asking About Reining In Mueller” →

Congress, Constitutional Law, Lawyering, Politics, Society, Supreme Court

Is The Whitaker Appointment (and the Federal Vacancies Reform Act) Constitutional?

Yesterday, I addressed arguments that the appointment of Matt Whitaker as Acting Attorney General violates federal law.  The arguments based on the Federal Vacancies Reform Act, in my view, are unpersuasive. As I noted, however, there remains a different and more fundamental question of whether the Act itself is unconstitutional by allowing an official without Senate confirmation to assume, even temporarily, the office of a “principal officer.”  If standing can be found to challenge the Act on that basis, the constitutional  arguments are compelling.  The constitutional question could be difficult to litigate if a nomination is made in January.  However, these constitutional concerns again raise the logic of firing Jeff Sessions immediately after the election as opposed to having him serve until the confirmation of his successor. Nevertheless, this is an issue that is somewhat untested in the courts and challengers would need to establish standing as well as raise a “ripe” issue to argue that Whitaker is lawful under the Act but the Act is unconstitutional under Article II.

Continue reading “Is The Whitaker Appointment (and the Federal Vacancies Reform Act) Constitutional?” →

Constitutional Law, Criminal law, Free Speech, International, Politics, Religion

Mosques Demand Twitter Bar Any Tweets By Geert Wilders

Freedom_of_SpeechSome 144 Turkish mosques in the Netherlands are demanding that Twitter bar any tweets from conservative politician Geert Wilders due to what they alleged are hateful and disparaging comments.  As many on this blog know, I hold to a robust view of free speech protections.  I tend to oppose censorship through both governmental and private means.  This is no exception. It has nothing to do with Wilders’ views.  I remain committed to the view that the best way of dealing with bad speech is good speech — not the censorship or criminalization of case. Continue reading “Mosques Demand Twitter Bar Any Tweets By Geert Wilders” →

Politics

White House Suspends Access For CNN’s Jim Acosta

In a major escalation of President Donald Trump’s war with the media, the White House today suspended the access of CNN’s Jim Acosta from the White House “until further notice.” I have been highly critical of the President’s attacks on the media and, as many might expect, I am equally critical of this move. I felt Acosta was out of line in refusing to give up the mike at the press conference this week.  However, he did not manhandle a female aide as suggested by White House Press Secretary Sarah Sanders and the appropriate response would be to make it clear to CNN that its reporters are not allowed to defiantly retain a mike or yell over the President in such conferences. Continue reading “White House Suspends Access For CNN’s Jim Acosta” →

Congress, Justice, Lawyering, Politics, Society

Yes, Matt Whitaker Qualifies As Acting Attorney General Under the Federal Vacancies Reform Act

Today I have two columns in USA Today and The Hill on the sacking of Jeff Sessions and appointment of Chief of Staff Matthew Whitaker as Acting Attorney General.  The Hill column challenges arguments that Whitaker must recuse himself.  However, this morning some members and commentators have declared that Whitaker cannot serve as an Acting Attorney General under federal law.  I have to disagree.  While not getting into the merits of the selection, it seems clear to me that, under 5 U.S.C. 3345, that Whitaker does indeed qualify.  (This of course does not address the long-standing debate over the constitutionality of such laws.  A challenge can be made under the Appointment Clause of the Constitution, mandating that a “principal officer” in the federal government may not be appointed without Senate confirmation).

Continue reading “Yes, Matt Whitaker Qualifies As Acting Attorney General Under the Federal Vacancies Reform Act” →

Columns, Media, Politics, Society

Politics By Other Means: Both Trump and Pelosi Suggest Using Investigations For Political Purposes

Below is my column in The Hill newspaper on the mutual threats from Nancy Pelosi and Donald Trump to use investigations in a tit-for-tat struggle with the new Congress.  In his press conference after the election, Trump said that he is prepared to adopt the same “war-like” stance and “They can play that game, but we can play it better.”

This promises to be long and intense two years, but there does not appear to be much hope for actually addressing some of the important issues that divide this country.

Here is the column: Continue reading “Politics By Other Means: Both Trump and Pelosi Suggest Using Investigations For Political Purposes” →

Animals, Courts, Environment, Politics, Society

Federal Court Moves To Protect The Red Wolf Population Against The Federal Government

There was an important victory for the environment this week after Chief Judge Terrence W. Boyle excoriated the Interior Department for its management of the the last red wolf population in the wild.  His decision could well have kept the red wolves from extinction — against the best efforts of the Interior Department to allow landowners to wipe out the only remaining members of this incredible breed of wolves.  The orders of the U.S. Fish and Wildlife Service were a disgrace and utterly disregarded their duty in protecting the environment.  The case is Red Wolf Coalition v. United States, 2018 U.S. Dist. Lexis 188522.  Continue reading “Federal Court Moves To Protect The Red Wolf Population Against The Federal Government” →

Media, Politics, Uncategorized

Covering Or Campaigning? Fox News Anchors Appear With Trump At Missouri Rally [Updated]

440px-The_Yellow_Press_by_L.M._GlackensI have been highly critical of what I view as the erosion of the line between journalism and advocacy in cable news, including a column this week criticizing CNN for its unrelenting anti-Trump coverage.  MSNBC has previously been criticized for its host, Al Sharpton, appearing at campaign rallies.  Now Fox is facing an equally serious incident after Fox News hosts Sean Hannity and Jeanine Pirro.  Both are known to be close confidants of Trump, but they also work for a news organization that is covering Trump and this election.  While many view the journalistic rule of separation as artificial in the age of partisan cable programming, it represents the most glaring breach in the rule that we have seen.  The incident raises an increasing conflict with journalistic values and programming.  All of the networks now have anchors who are openly partisan but maintain facial neutrality by not contributing or campaigning for parties.  The fear is that a departure from that technical rule will lead to a race to the bottom of networks working as an extension of political parties and a return to the age of “Yellow Journalism.” Update: Fox News has rebuked both Hannity and Pirro for their participation.

Continue reading “Covering Or Campaigning? Fox News Anchors Appear With Trump At Missouri Rally [Updated]” →

Bizarre, Constitutional Law, Criminal law, Media, Politics

“The Great Satan”: Farrakhan Finds His Happy Place . . . In Tehran

While many Americans are calling for greater unity in the country, anti-Semite Louis Farrakhan is in Tehran spewing his usual hateful message including reportedly leading a chant of “Death to America” and calling America the “Great Satan.” Despite the reprehensible comments in support of a nation that spreads terrorism and oppresses its own people, I still believe that it is protected speech despite the existence of the Logan Act, which makes it illegal for citizens to intervene in disputes or controversies between the United States and foreign governments.  That Act is widely viewed as unconstitutional and has never been used to convict a single U.S. citizen since it was enacted in 1799. Continue reading ““The Great Satan”: Farrakhan Finds His Happy Place . . . In Tehran” →

Bizarre, Constitutional Law, Criminal law, International, Media, Politics

Nigerian Army Shows Video Of Trump Suggesting That Soldiers Should Shoot Rock Throwers To Defend An Alleged Massacre

Many of us were critical of President Donald Trump’s statement that he told U.S. soldiers to shoot migrants who throw stones.  It took little time for authoritarian figures to latch on to the statement.  Nigeria’s army played the video of Trump to justify its shooting of protesters resulting in as many as 49 deaths. In the meantime, National Security adviser John Bolton gave a speech in which he praised Jair Bolsonaro, Brazil’s new president, as a “like-minded” leader.  The incident is reminiscent of Trump’s praise for Philippine President Rodrigo Duterte who is an international pariah for his orders to police to murder drug suspects and his bragging about his own killings.  Bolsonaro is a notorious figure who is a demonstrated racist, sexist, and homophobe who praises military dictatorship as well as torture. He also said that he would prefer his son be dead then gay.

Continue reading “Nigerian Army Shows Video Of Trump Suggesting That Soldiers Should Shoot Rock Throwers To Defend An Alleged Massacre” →

Bizarre, Justice, Lawyering, Media, Politics, Society, Torts

Mueller Accuser Is A No Show As Criminal and Civil Liability Loom Over The Allegations of Sexual Assault

Conspiracy theorists Jacob Wohl and Jack Burkman, a conservative lobbyist and radio host, are outspoken supporters of President Donald Trump and called reporters to come to a Holiday Inn in Washington to hear from a woman who would allegedly accuse Special Counsel Robert Mueller of sexual misconduct.  Previously, Mueller referred an allegation to the FBI that women were promised money to accuse him of wrongdoing.  With the no show of their accuser, Wohl and Burkman could well be looking at both criminal and civil liability.

Continue reading “Mueller Accuser Is A No Show As Criminal and Civil Liability Loom Over The Allegations of Sexual Assault” →