Category: Politics

A Clear Preponderance: Fact-Finding By the Senate Requires A Standard Of Review

senate_large_sealBelow is my Hill newspaper column on the unfolding controversy surrounding the allegations of sexual abuse brought against Judge Brett Kavanaugh.  As we wait for the week long FBI investigation to be completed, the question remains the same: what is the standard that should apply to such cases once all of the evidence laid before the Senate?  As the FBI prepares to submit new evidence, the Senate still must articulate a standard of review for that evidence.

Here is the column Continue reading “A Clear Preponderance: Fact-Finding By the Senate Requires A Standard Of Review”

“Necessary in a Democratic Society”: European Court Bars Pro-Life Advocate From Calling Abortion Murder

imagesWe have previously discussed the alarming rollback on free speech rights in the West, particularly in France (here and here and here and here and here and here and here) and England ( here and here and here and here and here and here and here and here and here and here). Much of this trend is tied to the expansion of hate speech and non-discrimination laws.   The Europeans appear committed to this trend of curtailing free speech and subjecting speech to coercive definitions of what the majority deems acceptable.  That commitment was made all the more evident, and chilling, by the decision of the European Court of Human Rights rejecting a German anti-abortion activist’s challenge to court orders enjoining him from referring to abortions as “aggravated murder” and comparing them with the Holocaust.  So now the courts are enforcing speech controls over clearly religious and political viewpoints in Europe. Continue reading ““Necessary in a Democratic Society”: European Court Bars Pro-Life Advocate From Calling Abortion Murder”

Maryland Will Open Criminal Investigation Of Kavanaugh If Ford Files A Complaint

download-7Not long after President Donald Trump ordered a one-week investigation of the FBI into allegations against Judge Brett Kavanaugh, Maryland officials have announced that they will launch a criminal investigation into the attempted rape allegations of Christine Blasey Ford if she files a complaint.  That would create the unprecedented situation of a nominee under criminal investigation as the Senate voted on confirmation.

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The Kavanaugh Hearing Leaves Lingering Questions Over Representations Made To The Committee By Counsel

Yesterday’s Kavanaugh hearing left many questions on both sides, including the ultimate question of the alleged attempted rape of Dr. Christine Blasey Ford.  However, for lawyers, one exchange sticks out from a professional standpoint.  Ford was questioned why she delayed the hearing due to her alleged fear of flying and, more importantly, why she did not simply meet with committee staff in California.  Ford admitted that, while she does not like to fly, she does in fact routinely fly around the world, including frequent trips to nearby Delaware.  The most striking statement however was the suggestion that she was never told by counsel that she did not have to fly to Washington and the Committee was ready to fly to her — a prospect that she said she would have welcomed.  That left a lingering question of whether her counsel did not tell her of a material offer or whether she misrepresented the reason for her delay in speaking to the Committee.

Continue reading “The Kavanaugh Hearing Leaves Lingering Questions Over Representations Made To The Committee By Counsel”

He Said, She Said, They Said . . .: Two Men Reportedly Claim That They Assaulted Ford

download-6In a new twist, Committee staff has reportedly interviewed two men who say that they were actually the two teens who may as assaulted Christine Blasey Ford in 1982 and not Judge Brett Kavanaugh.  It is not clear what further information will be released on this latest disclosure but it raises an obviously serious matter for both sides.  I remain leery of this lat minute leak and the lack of details — unfortunately a common element in this ongoing controversy.

 

Continue reading “He Said, She Said, They Said . . .: Two Men Reportedly Claim That They Assaulted Ford”

New Details Raise Serious Doubts Over The Credibility Of The Ford Polygraph

Leonarde_Keeler_1937.jpgThe passage of a polygraph by Christine Blasey Ford has been a key factor for many in believing her story — a fact cited by various members of Congress.  New details of the polygraph however have been released and some contradictions are being cited within Ford’s account. However, my main interest is the polygraph itself, which does not sound like any legitimate polygraph that I have encountered. I have handled a number of polygraph cases in my career and the description of these questions are nothing short of bizarre as a reliable test.

 

Continue reading “New Details Raise Serious Doubts Over The Credibility Of The Ford Polygraph”

Arizona Sex Crimes Prosecutor Hired To Question Ford and Kavanaugh

senate_large_sealThe Senate Judiciary Committee has announced the identity of the lawyer who will conduct the primary questions of both Dr. Christine Blasey Ford and Judge Brett Kavanaugh.  Rachel Mitchell, the sex crimes bureau chief for the Maricopa County Attorney’s Office in Phoenix, is someone with considerable experience in not such sex crimes but delayed sex crime prosecutions.  It is an unusual step for the Committee but not unprecedented.  Congress will hire outside counsel or allow counsel to question witnesses on some occasions, particularly at fact-finding stages.  I was hired a lead counsel to represent the United States House of Representatives in the successful challenge of the unilateral funding decisions of the Affordable Care Act by President Barack Obama. Continue reading “Arizona Sex Crimes Prosecutor Hired To Question Ford and Kavanaugh”

Insubordination Versus Obstruction: Has The New York Times Given Trump His Long-Sought License To Clean House At Justice?

Rod_Rosenstein_US_AttorneyBelow is my column in the Hill newspaper of the New York Times story alleging that Deputy Attorney General Rod Rosenstein spoke to this staff near the start of his tenure about secretly taping President Donald Trump and organizing a cabinet effort to oust Trump through the Twenty-Fifth Amendment.  Rosenstein denies the accuracy of the story and some have said that he discussed the possibility in jest.  The New York Times has responded by saying that it was clear that the comments were made seriously and not in jest.

It is still not clear what Trump will do despite many (including myself) arguing that he should not fire Rosenstein.  On Sunday, however, Trump told Geraldo Rivera that this was ultimately the fault of Attorney General Jeff Sessions (who selected Rosenstein) and that “we will make a determination” about what to do about the story.

Here is the column: Continue reading “Insubordination Versus Obstruction: Has The New York Times Given Trump His Long-Sought License To Clean House At Justice?”

And Then There Were Two: Another Woman Reportedly Has Come Forward To Accuse Kavanaugh

440px-Judge_Brett_KavanaughNews reports indicate that Democrats have been speaking with a second woman who is now prepared to accuse Judge Brett Kavanaugh of sexual assault.  The accuser is reportedly Deborah Ramirez, 53, and went to Yale at the same time as Kavanaugh.  She describes a bizarre scene of Kavanaugh exposing himself at a party in a dorm.  Ramirez admits that she was drunk and was previously uncertain if she could implicated Kavanaugh. Continue reading “And Then There Were Two: Another Woman Reportedly Has Come Forward To Accuse Kavanaugh”

Blind Justice or Blind Rage: The Kavanaugh-Ford Hearing and the Politics Of Belief

download-6download-7Below is my column in USA Today on the upcoming hearing on the allegations of Dr. Christine Blasey Ford against Judge Bret Kavanaugh.  There has been a strange disconnect as Democrats denounce Republicans for prejudging Ford or denying her an impartial hearing while they announced in advance that they believe her — and by extension they do not believe Kavanaugh.  While the Senate is not a court of law, both sides recognize that they are supposed to afford witnesses a fair and unbiased hearing, particularly when the subject is such a serious allegation as attempted rape.

Here is the column: Continue reading “Blind Justice or Blind Rage: The Kavanaugh-Ford Hearing and the Politics Of Belief”

Ford Agrees To Testify Next Week But Seeks Further Negotiation On Conditions

senate_large_sealAfter the Senate agreed to extend the last deadline on Friday to 2:30 today, Christine Blasey Ford has agreed to testify while seeking to continue to negotiate on some details with the Senate.  It is not clear how much progress has been made since Ford previously said she would testify but would not agree on the date or conditions.  Then she pulled back from that commitment while seeking conditions. Now she is saying again that she would testify but again asking for conditions and negotiations.

Continue reading “Ford Agrees To Testify Next Week But Seeks Further Negotiation On Conditions”

The Decision To Testify Rests With Ford But Not The Conditions For Her Testimony

senate_large_sealBelow is my column in the Hill newspaper on the demand of Dr. Christine Blasey Ford that the FBI investigate her allegation of attempted rape against Judge Brett Kavanaugh when they were high school students.  Ford has been given the opportunity to present her allegations before the Senate, which delayed its Committee vote on the confirmation to the Supreme Court.  She can certainly refuse to testify. However, neither the Senate nor the FBI customarily strikes such a quid pro quo agreement for testimony.  Ford can testify or not testify but, if she wants her allegations to be considered, she cannot set conditions on the Senate for such testimony.

It appears that Ford is reversing her latest position and may testify next week but not on Monday and only if the Senate can demonstrate that the hearing will be fair. In the meantime, the Senate is rumored to be preparing for a female lawyer to question Ford.  That is not necessarily good news.  A female lawyer may have less qualms about pressing Ford on inconsistencies than a male Senate just a few weeks away from an election. If Ford does not testify, the Republicans can treat her allegations as unproven and unsupported — and move toward a final vote.

Here is the column:

Continue reading “The Decision To Testify Rests With Ford But Not The Conditions For Her Testimony”

Le Pen Ordered Into Psychiatric Evaluation For Tweets In France

libertyFar right political leader, Marine Le Pen, has been ordered into psychiatric evaluations after she posted graphic images of bodies of people executed by the Islamic State.  She was accused under the French laws criminalization different forms of speech — laws that I have long criticized as part of a European rollback on core free speech rights.  Posting the pictures was charged as circulating “violent messages that incite terrorism or pornography or seriously harm human dignity” and that can be viewed by a minor.

Continue reading “Le Pen Ordered Into Psychiatric Evaluation For Tweets In France”

A Confirmation On The Brink: Three Scenarios For The Kavanaugh Hearing

440px-Judge_Brett_KavanaughBelow is my column in USA Today on the different outcomes possible in the ongoing Kavanaugh controversy.  These scenarios have become more complex after a hearing was schedule for Monday and then Dr. Christine Blasey Ford announced that she would not appear.  She has declared that the FBI must investigate her allegations of attempted rape as a condition of her testimony.  What is clear is that the last minute allegation has galvanized the Democratic ranked, including Missouri Sen. Claire McCaskall.  Obviously, if Ford does not show up at the hearing the GOP could use the refusal as a basis for treating the allegations as unproven and proceed to a vote on the merits.  If she does show up, Kavanaugh is likely in for one of the most brutal hearings in history.

Here is the column: Continue reading “A Confirmation On The Brink: Three Scenarios For The Kavanaugh Hearing”

Hirono: Men Need To “Shut Up and Step Up” After Kavanaugh Allegations

440px-Mazie_Hirono,_official_portrait,_113th_CongressImagine if a male United States Senator declared that women just need to “shut up.”  It would be a grossly sexist and disturbing statement that lead to calls for censure.  However, there apparently is no such concern in the inverse.  Sen. Mazie Hirono (D-HI) told men to “shut up and step up” when asked about the allegations against Judge Brett Kavanaugh. Hirono further insists that accused Dr. Christine Blasey Ford “need to be believed” and not just heard.  

 

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Res ipsa loquitur – The thing itself speaks