Free speech cases often require defending obnoxious speech or people. Dillon Shane Webb, 23, appears to be both. Webb is one of those people who think that it is funny to say obscene things and does not care at all about how his speech is impacting children or others. For that reason, Webb thought it was really, really funny to have a window sticker reading “I eat ass.” When he was asked to take down or change the offensive sticker, he refused and was arrested for criminal obscenity. The problem is that obscenity often depends who defines what is obscene. For free speech advocates, it is a standard that invites subjectivity and ambiguity in an area that depends bright line rules. That does not mean however that we cannot and should not denounce Webb for his offensive and careless speech.
There is a new report that Rev. Jerry Falwell Jr. reached out to Donald Trump in 2015 to seek his help on preventing the release of revealing photographs. Trump allegedly asked his fixer Michael Cohen to help Falwell. Cohen reportedly succeeded but, in Cohen’s signature style, Cohen reportedly kept at least one photo. Falwell would go on to offer a key endorsement of Trump before the Iowa primary.
A new Gallup poll shows Donald Trump’s presidential job-approval rating hitting at 46 percent. While one can fairly note that the popularity is still lagging considerably behind a booming economy, it is also notable that President Barack Obama was at 44 percent in Gallup polling at this time in his presidency.
I was hiking on my birthday when Michael Cohen finally went to prison. By the time that he made the walk, few of Michael Cohen’s former clients or associates are likely returning his calls these days. After revealing that he taped clients without their consent and confessing to various felonies, Cohen is radioactive. However, one group of people joining the “lose my number” list is apparently chilling for Cohen: the federal prosecutors. Cohen’s counsel Lanny Davis has confirmed that Cohen has repeatedly tried to arrange meetings to share new information with prosecutors in the hopes of delaying his prison stint beginning tomorrow or securing a reduction in his sentence. They have refused. For a man who has made his career on being willing to do anything for powerful figures, Cohen is in the one place that he most feared: he is alone and out of options. In his final statement as a free man, Cohen again dangled the prospect of his sharing more information — a repeated suggestion that must truly irritate prosecutors and congressional investigators who have been repeatedly told by Cohen that he has shared everything that he knows.
On Monday, I went on my traditional birthday hike and decided to tackle Loudoun Heights trail at Harper’s Ferry, West Virginia. I hiked around other Appalachian Trails and around Harper’s Ferry for a 16 mile trek. It was wonderful, though these old bones were rattling by the end of the day. I wanted to share some of the pictures with the blog.
Below is my column in The Hill newspaper on Barr hearing and its aftermath. The Democrats continue to focus on Barr rather than the report. Congress now has 98 percent of the original report available to it. Only two percent was redacted from the sealed copy in conformity with federal law barring the release of grand jury material. Less than ten percent of the report is redacted in the public version and only a small percentage in the key obstruction section is redacted. However, the leadership prefers to fight over the remaining two percent and the Barr letter than to commence actual impeachment proceedings against Trump. I wrote back in 2017 that the Democratic leadership has long been opposed to any actual impeachment of Trump. There are obvious reason why the Democratic leaders are opposed to removing Trump. That position has held firm as leaders struggle to assure voters that they want to impeach without actually impeaching. The result is a mutual effort by Congress and White House to run out the clock. The result is political theater at its worst.
Here is the column:
High profile hearings in Congress often look like a casting call for B-Grade actors reading a low budget slasher film script. The key is that look of shock and disgust regardless of what the witness answers. The standout performer is Senator Cory Booker, who has mastered that “I Know What You Did Last Summer” look, even when asking the most mundane or mixed questions. He knows that, in this genre, the script is less important than the optics.
Indeed, the hearing with Attorney General William Barr this week seemed, at times, to involve two scripts for two different movies, with Barr reading from the 2000s “Drag Me To Hell” while Senate Democrats read from the 1970s “I Spit On Your Grave.” Senator Mazie Hirono did not even stop to listen for his responses before denouncing his failure to answer questions.
Some new information was shared, such as the fact that special counsel Robert Mueller slowed the release of his report by ignoring requests from Barr and Deputy Attorney General Rod Rosenstein to identify grand jury information in advance. There was also Barr stating he and Rosenstein asked Mueller to reach a conclusion on all crimes. Barr effectively shifted the burden over to Mueller on such questions. Claims by House Speaker Nancy Pelosi that Barr lied under oath are simply unfounded and unfair.
Yet, Barr stumbled to answer when Senator Kamala Harris asked, “Has the president or anyone at the White House ever asked or suggested you open an investigation of anyone?” Barr got caught up with the meaning of “suggest” then categorically denied that anyone had asked he open any investigation but said, “I’m trying to grapple with the word ‘suggest.’ I mean, there have been discussions of matters out there.” Just like the seasoned former prosecutor she is, Harris pounced on his answer and suggested that someone might have “hinted” or “inferred.”
This is why both compound and vague questions are generally barred in actual cross examination. Barr looked evasive and uncomfortable, even though he explained that his concern was that conversations clearly did cover possible investigations but he was never asked to open one. The distinction makes for bad television but is a legally important point here.
President Trump has repeatedly crossed the traditional line of separation between the White House and the FBI, with his probing of officials like former FBI Director James Comey on the status or direction of the Russia investigation. While I have been critical of Comey, he was absolutely right in his objections to the inquiries from Trump. Past presidents generally avoided meeting alone with FBI directors, much less recklessly pressing them on investigations that touched on political or personal interests.
A demand from the White House for an investigation can raise serious questions of political influence over prosecutorial decisions. However, the line can be blurry. Presidents often call for investigations on issues of national importance. After a police shooting in Ferguson, Missouri, for example, President Obama held a press conference in which he was heralded for announcing that he had ordered the Justice Department and the FBI to both “independently investigate the death of Michael Brown.”
The Justice Department is part of the executive branch, and there is often discussion of the priorities and controversies involved in its investigations. For that very reason, Democrats were not aghast when former Attorney General Eric Holder publicly proclaimed he was a “wingman” for Obama. Likewise, Democrats applauded Obama when he ordered the Justice Department not to prosecute certain immigration cases. The line that cannot be crossed is the direction or influence of such an investigation.
Anyone can ask the Justice Department to look into allegations of criminal conduct. The Justice Department then makes an independent decision on whether to investigate. This includes members of Congress, who often call upon the Justice Department to investigate individuals despite their interests. Indeed, Harris has repeatedly done so, including calling for the Justice Department inspector general to investigate Barr. There is nothing improper in such a request, even if it has more political than legal merit.
Take the latest request from Senate Democrats for an investigation into Barr and Rosenstein reaching a conclusion on the obstruction evidence after Mueller had refused to do so. They wrote in a letter to the Justice Department inspector general, “It is unclear what statute, regulation, or policy led the attorney general to interject his own conclusion” that the conduct of the president did not amount to obstruction of justice here.
It is a bizarre question since the United States Code says, “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the attorney general,” with a couple narrow exceptions dealing with administrative judges and prisons. The Justice Department makes the prosecutorial decisions, and the ultimate decision maker here is the attorney general.
What makes the request even more curious is the omission of the more obvious question. Why did Mueller not reach a decision? As I wrote on the day that Barr released his summary of the Mueller report to Congress, it is perfectly incomprehensible that Mueller did not reach a conclusion. After reading his report, his reasons for refusing are even more inscrutable.
The special counsel is mandated to “provide the attorney general with a confidential report explaining the prosecution or declination decisions reached by the special counsel.” While the report references the Justice Department policy not to indict a sitting president, nothing suggests that a special counsel cannot reach a conclusion on the evidence of criminal conduct by a president. If there was any doubt on Justice Department policy, it should have been clarified when Barr and Rosenstein, who oversee Mueller, pressed him to reach a conclusion. Barr still cannot explain the rationale for a special counsel not reaching a conclusion.
He is not alone. Democrats have also called for an investigation of what they view as a “lack of impartiality” under the attorney general. Harris expressed surprise that Barr did not personally review the underlying evidence, consisting of millions of documents and records, collected by Mueller before reaching his conclusion on obstruction. What she ignored is that such an independent review would have negated the work by Mueller. As Barr correctly stated, “We accepted the statements in the report as factual record. We did not go underneath it to see whether or not they were accurate.” Democrats presumably would want him to do that instead of substitute his own facts for those of the special counsel.
Harris was not wrong in pressing Barr on any White House pressure to open investigations. However, there is nothing improper with the White House raising priorities and controversies with the attorney general. What raises serious ethical concerns is when those cases directly impact a president or his campaign. An attorney general should push back on anything he or she views as efforts to influence prosecutorial decisions.
Of course, every good slasher film has a sequel, and there are several in the works in this case with the calls for Mueller, Rosenstein, and former White House counsel Don McGahn to testify. Congress has every right to call on these officials, and the suggestion from Trump that he will block McGahn would be entirely unjustified. But if Congress truly wants answers and not just optics, it might try keeping the jump scares to a minimum.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
I teach “dram shop” cases in my torts class — cases where bars and bartenders are sued for “over serving” customers who later cause injuries to third parties. This week there is Texas case that involves a criminal charge against a bartender, Lindsey Glass, 27, who was arrested after allegedly violating the Texas Alcoholic Beverage Code. The man that she allegedly over-served was Spencer Hight, who killed eight people after leaving the Local Public House in Plano. The bar has also been sued by the families of the victims.
President Donald Trump has continued to oppose the testimony of key witnesses like former White House Counsel Don McGahn. He has now added his opposition to the testimony of Robert Mueller himself. It is a position that signals a certain defensive, if not fearful, posture with regard to the report. Congress clearly has a legitimate interest in hearing from these witnesses and will prevail in forcing their appearance. More importantly, it is not in the public’s interest for the White House to seek to silence such witnesses with lingering questions over the allegations against the President. I have long expressed my skepticism over the chances of a collusion or obstruction charge against Trump. However, Congress should move quickly to challenge any such block on key witnesses.
For lawyers and other professionals, a good firm handshakes is a practiced art. It may however soon be declared inappropriate with all other forms of physical contact according to a recent survey on business seeking to combat inappropriate touching in the workplace. A survey by TotalJobs found that three out of four people want all physical contact banned at work. Other employment experts have also discussed the possible ban on any contact of any kind to combat sexual harassment. Companies are considering a total ban on contact, including handshakes.
This blog regularly looks at copyright and trademark claims, particularly with regard to efforts to claim common terms or names as property. A case this week however has the distinction of a lawyer claiming a trademark violation against his own son for using his legally given name. George Sink Sr. is suing George Sink Jr. for the confusion raised by the two law firm names.
As many of you know, I have long lamented the rising intolerance shown at colleges and universities over free speech. Both faculty and students now regularly fight to prevent people from speaking rather than allow a diverse array of views and experiences on campuses. Fortunately, most law schools have sufficient free speech advocates to counter such moves. However, this week the University of Southern California Law School joined this ignoble list when the school pushed Jeh Johnson, the former Obama Secretary of Homeland Security, to withdraw as the commencement speaker. Johnson was a wonderful choice for the graduation and could share not just his incredible career but his powerful personal story with the law students. Instead, he was told by Dean Andrew Guzman that there were “concerns” about his appearance.
Lunch ladies have been featured regularly on this blog in a variety of controversies (here and here and here and here). Marie McWilliams, 30, however, is not some passive aggressive lunch lady. McWilliams is accused of actually sniping at children on the playground with a BB gun and then pledging to get the children in her own time.
I have the pleasure of speaking this afternoon at the American Bar Association’s conference in New York on a panel addressing the “cultural defense.” The panel is entitled “Stranger in a Strange Land: Cross Cultural Issues in the Courts.” It will be held at 2 pm at the Marriott Marquis Hotel.
Below is my column in The Hill newspaper on the hearing with Attorney General Bill Barr in the Special Counsel investigation. Barr’s testimony reaffirmed many of the points of the column, including the fact that Robert Mueller was not told that he could not reach a conclusion of obstruction. Indeed, Barr testified that both he and Deputy Attorney General Rod Rosenstein told Mueller that he should reach a conclusion. As Mueller’s superiors, that should have resolved any question of a “policy” of Main Justice. However, according to Barr, Mueller not only did not reach a conclusion but he also disregarded the express request that his staff identify grand jury information to allow for a rapid release of a redacted report.
Notably, Barr also confirmed that just eight percent of the public report was redacted — largely to remove material that could undermine ongoing investigations. The sealed version of the report given to Congress only had two percent redacted. Thus, while the Democratic leadership is insisting holding back impeachment efforts until they can get “the full report,” they already have 98 percent of the report and the remaining grand jury information might ultimately not be released by a federal court. Nevertheless, as predicted in the column, the focus of Congress remains on the four-page summary that preceded the full 408-page report. It is a telling emphasis that highlights what I have previously discussed as the priority of congressional leaders.
