Constitutional Law, Criminal law, Politics

DC Attorney General Looking Into Arresting Trump and Others

District of Columbia Attorney General Karl Racine has declared that he is considering arresting President Donald Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks with inciting the violent invasion of the U.S. Capitol.  He noted that, while the Justice Department does not believe you can charge a sitting president, he can do so in a matter of days. Ironically, I believe Trump can be indicted immediately as a constitutional matter but that his prosecution would ultimately collapse on free speech grounds.

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Columns, Congress, Constitutional Law, Criminal law

How A Snap Impeachment Could Shatter Our Constitutional Balance

Below is my column in the Hill newspaper on my concerns over the planned “snap impeachment” this year.  In my view, impeaching on the speech alone would raise serious concerns over the use of impeachment in the future. Many Democrats, including members of Congress, refused to accept Trump as the legitimate president when he was elected and refused to do so as rioting broke out at the inauguration.  Many of the same members have used the same type of rhetoric to “take back the country” and “fight for the country.”  The concern is that this impeachment will not only create precedent for an expedited pathway of “snap impeachments” but allow future Congresses to impeach presidents for actions of their supporters.  The point of this column is to call for greater caution and deliberation before we take this step to consider the basis and implications of this impeachment.  As with the calls to use the 25th Amendment, there are real dangers to any opportunistic or hurried use of this option.  There is also the alternative of a joint and bipartisan condemnation of both houses, which would be both justified and unassailable.

As I have said, there could be evidence to support impeachment on the proposed incitement article but it would have to be found before or after the speech to show an intent to spark rioting or to allow it to continue.  As with the 25th Amendment claim, such evidence would be found from within the White House and through a traditional impeachment inquiry.

Here is the column: Continue reading “How A Snap Impeachment Could Shatter Our Constitutional Balance” →

Constitutional Law, Free Speech, Media, Politics

Parler Shutdown In Latest Attack on Free Speech On The Internet

Recently, millions of supporters of Twitter reportedly left that company due to its continued censoring of viewpoints and the permanent banning of President Donald Trump.  Many went to the more open forum offered by Parler — making it the number one item on Apple’s App store.  Apple, Google, and other companies then moved to cut off Parler, which has now been shutdown. In so doing, these companies eliminate any alternative to their own controlled platforms. It is a major threat to free speech. Yet, the silence of academic and many free speech advocates is striking and chilling. Continue reading “Parler Shutdown In Latest Attack on Free Speech On The Internet” →

Columns, Congress, Constitutional Law, Politics

Be Careful With The 25th Amendment

Below is my column in USA Today on the call to use the 25th Amendment to “remove” President Donald Trump. As a threshold matter, the 25th Amendment does not “remove” a president but rather shifts his powers to the Vice President. The only method for removal of a president from office is impeachment. The 25th Amendment refers to the Vice President as “acting” in his capacity.  However, “removal” is a common way of expressing the substitution under the 25th Amendment. The main problem is not the nomenclature but the standard. Section 4 actions under the amendment are designed for physical or mental incapacities. Such evidence may exist but it has not been disclosed. Vice President Mike Pence would need to disclose such evidence of mental illness or irrationality in the President. The speech alone is not a basis for a 25th Amendment “removal.”

This week, Speaker Nancy Pelosi is continuing to call for the invocation of the 25th Amendment or impeachment as alternative courses of action.  She and others have expressed a preference for the 25th Amendment due to the limited time remaining before President Trump leaves office.  However, neither time nor the text for a 25th Amendment action is supportive in this effort. More importantly, without such clear evidence of mental incapacity, the use of the 25th Amendment could introduce even greater instability in our system.

Here is the column: Continue reading “Be Careful With The 25th Amendment” →

Columns, Congress, Constitutional Law, Media, Politics

A Crisis Of Faith: Why We Should Be Worried More About A Desecration Than An Insurrection

Below is my column in the Hill on the riot at Congress and its implications for our country.  As shown by the unfounded rush for a “snap impeachment,” we are experiencing a crisis of faith in this country — not only in our Constitution but ourselves.  Pushing for a snap vote (and snap judgment) on these issues will only exacerbate our divisions. This is a time for deliberative, not impulsive, action in Congress.

Here is the column:

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Constitutional Law, Media, Politics

Say It Ain’t So, Joe: The Failure of Biden To Denounce This Impeachment Is A Missed Presidential Opportunity

This week, President-elect Joe Biden made a highly commendable decision to nominate Judge Merrick Garland as the next United States Attorney General. Like many, I praised Garland as an outstanding choice and a move that advanced Biden’s earlier pledge to seek unity. That is why I was so disappointed in Biden refusing to take a position on the effort to impeach Donald Trump next week. As with his equally inexplicable refusal to take a stand on court packing, Biden’s silence on this clearly unsupportable “snap impeachment” was a missed opportunity to show real leadership when it matters most.  It is not popular to oppose this impeachment, but leadership often demands that presidents take unpopular but correct positions. Continue reading “Say It Ain’t So, Joe: The Failure of Biden To Denounce This Impeachment Is A Missed Presidential Opportunity” →

Congress, Media, Politics

The Lafayette Park Protests And The Revision Of History

One of the most unsettling aspects of the last four years is the intentional effort to rewrite history in the media to fit a narrative either by denying facts or echoing clearly false statements. The recent stories on the riot in Congress is a good example.  Most of us denounced Trump’s speech (as it was being given) and, of course, the rioting itself.  Some, however, have noted that there have been violent protests for years, including the protest in Lafayette Square. The fact that there have been violent protests by the left does not take away from the disgraceful attack on Congress. Yet, there seems a controlling narrative that must be maintained at all costs — portraying past protests by groups on the left as peaceful to magnify the criticism of the recent violence in Congress. Even a site ironically called Media Matters published a piece not only calling the Lafayette protest peaceful but repeating a long discredited claim about the controversial Trump photo op.  I testified in Congress on the Lafayette Park operation and the revisionism surrounding the controversy is alarming.

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Constitutional Law, Free Speech, Media, Politics, Uncategorized

Washington Post Columnist Calls For Expulsion Of Members Who Challenged Electoral Votes

Washington Post columnist Jennifer Rubin is calling for the expulsion of Republican members for challenging the electoral votes this week as “sedition.”  From the outset, I opposed this challenge as unfounded.  However, think about this demand (which has been raised by others).  Rubin wants to expel members who joined challenges allowed under a federal law (on the very same grounds that Democrats have made in past elections). Indeed, she declares “Every Republican bears a responsibility for what happened on Wednesday, whether or not they participated in a seditious attempt to overthrow our democracy.” So Republicans who opposed the challenge and denounced the violence should still be punished or blamed?

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Criminal law, Lawyering, Politics, Torts

Trump Attorney Accuses The President Of Criminal Conduct In His Withdrawal of Representation

On January 7th, an attorney representing President Donald Trump filed a one-page motion of withdrawal from a case filed shortly after the election. That is hardly remarkable with attorneys entering and leaving cases every day in federal court. What is remarkable is the reason.  Philadelphia-based attorney Jerome Marcus told the United States District Court for the Eastern District of Pennsylvania that he was withdrawing because President Trump used him, and his election challenge, to “perpetuate a crime.”  The filing raises some troubling questions regarding the alleged criminal conduct as well as the necessity of making such an allegation in a simple motion to withdraw from representation.

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Bizarre, Media, Politics

Lock’Em Up: MSNBC Host Scarborough Demands The Arrest Of Trump, Giuliani, and Trump Jr. For Insurrection

In a profanity laced diatribe, MSNBC host Joe Scarborough demanded the arrest of President Donald Trump, Rudy Giuliani, and Donald Trump Jr. for insurrection.  Scarborough declared “If Donald Trump Jr., Rudy Giuliani and Donald Trump are not arrested today for insurrection and taken to jail and booked . . . then we are no longer a nation of laws and we only tell people they can do this again.” What he is suggesting would be the very antithesis for the rule of law.

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Columns, Congress, Constitutional Law, Politics

I Hate Federal Commissions, But Americans Need One To Look Into The 2020 Election

Below is my column in USA Today on the need for a federal commission on the 2020 election. While I opposed the challenge and the call for the ten-day commission, I do believe that a real commission is warranted.  Indeed, the violence yesterday only further shows the deep divisions in this country over these lingering questions. However, there must be the commitment to a real commission — not another placebo commission

Here is the column: Continue reading “I Hate Federal Commissions, But Americans Need One To Look Into The 2020 Election” →

Columns, Congress, Constitutional Law, Courts, Politics, Society

We Must Talk About Constitutional Issues In The Election Certification

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:

Continue reading “We Must Talk About Constitutional Issues In The Election Certification” →

Criminal law, Lawyering, Media, Politics

Trump’s Midas Touch: Legal Experts Line Up To Declare The Georgia Call As The Latest Crime By Trump

For many legal analysts, President Donald Trump remains a type of criminal Midas figure: everything he says or does turns instantly into a crime.  Over the last few years, the media has published a long line of unfounded criminal theories by experts claiming that a tweet or a meeting or a statement established a clear prosecutable case. It is a popular and profitable take with the media which has been feeding an insatiable appetite for such reassuring views.  Law has become a recreation and legal analysts have become part of the legal entertainment. Continue reading “Trump’s Midas Touch: Legal Experts Line Up To Declare The Georgia Call As The Latest Crime By Trump” →

Columns, Media, Politics

De Blasio’s Dance and The Delusional Politics Of 2021
YouTube screenshot

Below is my column in the Hill on the rise of delusional politics in America — a problem captured vividly on New Year’s Eve as Mayor Bill de Blasio dancing with his wife to a virtually empty Times Square. This is not Chicago where Sinatra sang about seeing a “guy dancing with his wife.” It is New York and the only one dancing seemed to be de Blasio.

We are watching as both parties seem blissfully and utterly detached from reality.

Here is the column:

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Academia, Congress

“Awomen”: Rep. Cleaver’s Prayer Captures Broader Controversy Over “Degenderizing” Language

We recently discussed the decision of schools to stop using the gender-neutral term “alumni” to combat sexist language.  That controversy came to mind yesterday when Rep. Emanuel Cleaver, D-Mo., altered the traditional ending of “amen”  for a prayer before the House of Representatives. Instead, he ended with “Amen and awoman.” This minor controversy raises a broader point as we change or bar common terms that are not gender specific.

Continue reading ““Awomen”: Rep. Cleaver’s Prayer Captures Broader Controversy Over “Degenderizing” Language” →