There is a building campaign at Harvard to rescind the degrees of Trump officials and allies including White House Press Secretary Kayleigh McEnany, Senator Ted Cruz (R-TX), and Representative Dan Crenshaw (R-TX). This is not the only such effort to retaliate against Trump officials from blacklists to campaigns of harassment. Indeed, previously there was a demand for a ban on former Trump officials from being allowed on campus at Harvard. Recently Rep. Elise Stefanik was removed from a high-ranking board on Harvard for challenging the victory of President-elect Joe Biden. The concern for some of us is that the Capitol riot is now being used by many to accelerate the crackdown on free speech on our campuses.
Below is my column in the Hill on today’s challenge to the counting of electoral votes in Congress. The challenge raises a long-standing debate over the authority of Congress in making such challenges. What is clear in my view is that Vice President Michael Pence does not have the unilateral authority claimed by President Donald Trump to simply “send back” electoral votes for particular states. Nothing in the Constitution suggests such authority and the Electoral Count Act expressly contradicts such claimed authority. Indeed, such an act could bring an unprecedented challenge and judicial intervention in the certification of the presidential election.
What is odd is the President’s continued assurance to his supporters that this is a possible path to victory. Shortly after the election, I wrote that I thought the President was laying the foundations for a “Death Star” strategy but that it would not likely succeed. To make that Luke Skywalker shot, he needed a perfect alignment of elements. None of those elements are present today. The over-hearted rhetoric from the President and his critics however are magnifying our divisions and anger.
Here is the column:
There is a controversy developing in North and South Dakota where The Standing Rock Sioux tribe is prioritizing speakers of its native languages for its COVID-19 vaccine distribution. The tribe insists that it wants to protect those who can preserve its language. However, that is the imposition of a language criterion over those categories set out by the CDC for health workers, the elderly and most at risk individuals. The clear import is that prioritized individuals under the CDC guidelines could become infected and die because of the desire to protect those viewed as greater “assets” to the tribe. Continue reading “Sioux Tribe Imposes Language Criterion For Priority Vaccinations”
Judge David Bernhard is a jurist in Fairfax County (where I reside) has issued a controversial order that the portraits of white judges must be removed from a courtroom because their presence would deny a black defendant a fair trial. In a decision applauded in the Washington Post, Bernhard declared that a fair trial is threatened in “a courtroom gilded with … white individuals peering down on an African American defendant.” Continue reading ““Symbols . . . Of Subtle Oppression”: Virginia Judge Orders Removal Of Portraits Of White Judges”
The New York Times is under fire for its coverage of how an incoming Tennessee cheerleader was dumped from the team after the release of a three-second video in which she used a racial epithet. Times reporter Dan Levin gave a strikingly positive account of how Jimmy Galligan waited for years to release the video to do the most harm to Mimi Groves. The article “A Racial Slur, a Viral Video, and a Reckoning,” is being cited as the ultimate celebration of the cancel culture in its tenor and lack of balance. Everyone agrees that the use of the n-word was a terrible thing. However, the same standard does not seem to apply to professors who use racist and insensitive comments. It would seem that, even if students are not accorded the same protections for faculty, universities should offer them the same opportunity for redemptive change. After all, college is meant as place for personal growth for students.
Saudi Arabia added to its list of human rights abuses this week with the sentencing of women’s rights activist Loujain al-Hathloul. I have previously written about the inspiring courage and commitment of Saudi feminists, but al-Hathloul is a standout even among that group. She has tirelessly fought for simple rights like the ability to drive in a kingdom that continues to deprive women, religious minorities, journalists, and others basic protections. She was reportedly tortured by the Saudi government, a signature of the blood-soaked Crown Prince Mohammed bin Salman. Now she has been sentenced to five years in prison. Continue reading “Feminist Activist Sentenced To Five Years For Endangering National Security”
’Tis the season for the Christmas tort. For lawyers, Christmas remains a horn-of-plenty for the practice of law. Indeed, mayhem and madness have been part of Christmas since its very founding. Thus, each year we gather for the posting of the annual list of Christmas torts and crimes. Fortunately, the holiday is much more than the entries on the criminal or civil dockets. However, these cases remind us all that, even when chaos lurks around holiday gatherings, we somehow survive and return year in and year out. So Happy Holidays to everyone. Continue reading “Christmas Torts: The 2020 Listing Of Holiday Mishaps and Madness”
In 2019, former Rep. Katie Hill resigned from Congress after the disclosure of sexual relations with a staff member. Ordinarily, the media and various public interest groups would have been outraged and unrelenting in their “MeToo” coverage, particularly with a young staffer recently out of college. In the case of Hill, however ,media outlets like MSNBC picked up on Hill’s claim that she was subjected to a “double standard” and a “misogynistic culture.” It was the ultimate form of ironic hypocrisy where a politician claimed a double standard in being forced to resign — seeking an accommodation that was wisely denied to male colleagues in past scandals. Various male politicians from Sen. Bob Packwood to Rep. Trent Franks have resigned under such scandals. Sen. Al Franken resigned for acts that did not involve an actual sexual affair. Hill abused her position of power but somehow converted that abuse into a women’s rights issue. Hill sold that narrative and is now bizarrely treated by many as a victim. Now, Hill is suing over the coverage of her scandal in a lawsuit that challenges core protections for the media. Continue reading “Former Rep. Hill Files Lawsuit Against Former Husband And Media Over Public Disclosures”
Yesterday, the media erupted with the latest bombshell stories of how President Donald Trump is discussing plans for martial law and the appointment of former Trump campaign lawyer Sidney Powell as a Special Counsel. It was a familiar bomb and bust pattern. A fair basis for coverage on the meeting quickly mutated into what bordered on panic coverage on the threat of a military takeover. This morning Jake Tapper headlined his show with “Conspiracy in the Oval Office” on how Trump discussed imposing martial law. He asked “How scared should we be?” The answer is not very on either count. President Trump publicly denied the report as “fake news.”
New York Gov. Andrew Cuomo signed legislation this week that would ban the the sale of Confederate flags and other symbols of “intolerance and hate” on public property and limit the display of such symbols. As a long-standing free speech advocate, you must often defend speech that you find offensive. However, the First Amendment is not designed to protect popular speech. We do not need protection for speech that people support. The test of free speech is to support those with whom you disagree and speech that you oppose. This is one such case. In my view, the Cuomo legislation is a violation of the First Amendment. Continue reading “Cuomo Signs State Law Barring Sale and Display of “Symbols Of Hate””
There remains a blackout on the sexual harassment allegations against Democratic Gov. Andrew Cuomo by most major media outlets. Putting aside the striking lack of interest in comparison to the allegations raised against Justice Brett Kavanaugh, the controversy from that confirmation fight could raise difficult questions for Cuomo who not only insisted that Dr. Christine Blasey Ford must be believed but demanded that Kavanaugh take a polygraph examination. It is not clear if Cuomo will now follow his own standard and take a polygraph examination arranged by others. Continue reading “Cuomo v. Cuomo: Did The New York Governor Make The Case Against Himself With Kavanaugh?”
“We did not belabor the point.” No words better capture the lack of intellectual and historical content of much of the cancel culture sweeping the nation. It was the response of Jeremiah Jeffries, the Chair of the San Francisco School Names Advisory Committee. The Committee has recommended the renaming of Abraham Lincoln High School as well as targeting the George Washington High School, Herbert Hoover Middle School and Paul Revere K-8. Even an elementary school named after Dianne Feinstein is being targeted. This is not the first such effort around the country that focused on Lincoln. We recently discussed the effort of University of Wisconsin college students to remove the prominent statue of Lincoln on campus as not sufficiently “pro black”and a single-handed symbol of white supremacy.”
Last night we continued our Hanukkah celebration with a big dinner with the kids (as a mixed Jewish/Catholic couple we celebrate both sets of holidays). I thought that this was a good time to honor one of the least known early American heroes, Francis Salvador who holds the distinction of being the first Jewish person elected in the United States and the first Jewish person to die for American freedom. We previously discussed the story of Commodore Uriah Levy, another figure often overlooked in early historical accounts. Our history is rich with such early Jewish figures at the founding and rise of the American Republic. As with this picture of Navy personnel celebrating Hanukkah, this nation continues to rely on patriotic Jewish Americans who answer the call of duty.
This morning, Brian Kilmeade did an excellent interview with President Donald Trump and pressed him on issues like a possible floor challenge to the certification of the 2020 election under what I have called a “Death Star” strategy. Trump notably refused to answer that question and whether he would attend the inauguration by saying “I don’t want to talk about that.” What he clearly wanted to talk about was Attorney General Bill Barr, who is facing calls to be fired for his maintaining confidentiality over ongoing federal investigations linked to Hunter Biden. Kilmeade pressed Trump on the attacks on Attorney General Bill Barr and quoted me as saying that Barr acted correctly in declining to reveal ongoing investigations related to Hunter Biden. Trump responded that he is only asking for what Special Counsel Robert Mueller did in correcting a false news story in 2019. I disagree with the analogy with that clarification, which presented a very different ethical and factual situation. Barr did exactly what he had to do to protect not just the integrity of these investigations but the integrity of the Justice Department as a whole.