Constitutional Law, Politics, Torts

“Refuse At Your Peril”: Does The Lincoln Project Have A Credible Defamation Case Against Giuliani?

As someone who has taught defamation torts for thirty years, the Trump Administration has been a bonanza of such cases and controversies.  While many claims of defamation have been resulted in filings, we have had a number of high profile political controversies turn into actual tort litigation. I regularly criticized Donald Trump for his calls to change defamation laws. On the opposing side, figures like MSNBC’s Joe Scarborough raised equally poor understandings of defamation law in considering lawsuits against Trump.  However, not surprisingly in our age of rage, there has been a slew of defamation claims raised from leading lawyers to universities to academics to police officers to the Dominion company to Sarah Palin to Jerry Falwell Jr. to Roy Moore to Joy Reid . . .  well, you get the idea.

What is striking is that some of the most reckless figures or groups are often the first to raise such claims, including Trump himself. The Lincoln Project is the latest example.  The group participated a disgraceful campaign of intimidation against lawyers and law firms that began soon after the election, including alleged efforts to dox or troll people with opposing views.  This includes work that was previously discussed as potentially defamatory.  It is now saying that it has a strong case against Rudy Giuliani who himself seems a perpetual defamation machine. The claim arose after Giuliani held a signature interview with unhinged and unsupported allegations, including that someone associated with The Lincoln Project helped orchestrate the recent riot on Capitol Hill. While the Project says that this is an open and shut case, there are serious impediments facing such a lawsuit and it is not, in my view, sure thing under controlling case law.

Continue reading ““Refuse At Your Peril”: Does The Lincoln Project Have A Credible Defamation Case Against Giuliani?” →

Academia, Free Speech, Politics, Society

“Republicans Need To Suffer”: Drake Professor Triggers Free Speech Debate With Hateful Tweets Against Men and Conservatives

There is a free speech debate at Drake University over hateful and vulgar tweets from Associate English Professor Beth Younger, who called for Republicans “to suffer.” We have seen increasing vulgar attacks from academics, including such high-profile figures as Laurence Tribe in the last few years. Notably, Twitter did not suspend Younger’s account for calling for harm to all Republicans. I do not believe that she should be barred from social media or fired from Drake as a matter of free speech. Even with professors who have justified the murder of conservatives or killing police are protected in such hateful expressions.  The solution to such hate speech is more (and better) speech.  I would rather we denounce such speech than censor it. Continue reading ““Republicans Need To Suffer”: Drake Professor Triggers Free Speech Debate With Hateful Tweets Against Men and Conservatives” →

Congress, Criminal law, Politics

Why Hasn’t The House Held Hearings To Establish “Incitement Of Insurrection”?

We recently discussed how the Senate will have to decide whether to call witnesses in the second impeachment trial of former President Donald Trump. The use of a snap impeachment raises a basis for some senators to oppose such witnesses on institutional or prudential grounds. Democrats opposed any witnesses in the Clinton impeachment and there were no witnesses in the first Trump impeachment trial. Not surprisingly, the House is demanding witnesses. The initial vote in the trial shows that it is substantially short of the number of senators needed to convict and Trump could be acquitted on a virtual 50-50 vote. So here is my question: why has the House not used the last few weeks to call these witnesses and build the needed case to show intent to incite an insurrection? Weeks have gone by with key witnesses speaking to the press but not to the House.  Why? Continue reading “Why Hasn’t The House Held Hearings To Establish “Incitement Of Insurrection”?” →

Columns, Congress, Constitutional Law, Politics

Ruling On The Record: The Senate’s Looming Prudential Questions Could Weigh Heavily With Members On Witnesses and Conviction

Below is my (expanded) column in the Hill on the prudential (as opposed to the constitutional) concerns raised by the second Trump impeachment trial. Senators will have to resolve these questions before reaching the merits.  The prudential concerns may also weigh heavily in the possible rejection of witnesses after the snap impeachment. The House blundered by leaving the record and witnesses entirely to the Senate to develop. The Senate could now chose to rule on the record — or lack thereof.  Even a couple days of hearings could have created a record of documents and witness accounts — and an opportunity for a formal response from the President. It could also have allowed for suggested changes on the language of the article to allow for broader support. I have no objection to removing a president on his final day, but the House should create a minimally sufficient record to support a constitutional determination of a high crime and misdemeanor.

Here is the column:

Continue reading “Ruling On The Record: The Senate’s Looming Prudential Questions Could Weigh Heavily With Members On Witnesses and Conviction” →

Academia, Constitutional Law, Media, Politics

Impeachment in the Age of Trump: Laurence Tribe’s Evolving Views Of Impeachable Conduct

Harvard Professor Laurence Tribe was on CNN last night reassuring viewers that the Constitution clearly and unequivocally allows for the trial of a former president. In what has become a signature of Tribe’s commentary, he declared any contrary view as “stupid” while engaging in gratuitous personal insults.  I have previously written about Tribe’s past personal attacks on those who hold opposing political or legal views. While such attacks thrill many on social media, it should have no place among academics. What is more notable however is how Tribe’s views have changed since the Clinton impeachment when we testified at the impeachment hearing of constitutional experts. While he once questioned whether Bill Clinton could be impeached for a murder unrelated to his official conduct, Tribe has suggested that Trump could be impeached for a tweet alleging criminal misconduct by Barack Obama.

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Bizarre, Constitutional Law, Politics, Society

Elizabeth Warren Calls Reporter’s Concerns Over A Wealth Tax As A “Bluff”

Sen. Elizabeth Warren (D., Mass.) was back on the airways this week touting her signature “wealth tax” in a sharp exchange with CNBC’s “Closing Bell” host Sarah Eisen. I have previously written about the constitutional concerns over a true wealth (as opposed to an income) tax, the exchange concerned the impact of a tax on the most wealthy. Warren ridiculed the notion of the wealthy leaving the country as a mere “bluff” meant to deter her and others from forcing the wealthy to pay their fair share.

Continue reading “Elizabeth Warren Calls Reporter’s Concerns Over A Wealth Tax As A “Bluff”” →

Animals, Bizarre

“Stand Up For Justice”: PETA Denounces Animal Insults As “Supremacist” and “Speciesist”

We have previously discussed curious campaigns by People for the Ethical Treatment of Animals (PETA) like seeking to change the expression “bring home the bacon” with “bring homes the bagels.”  Now the animal rights group appears to be tapping into the movement for speech curtailment and regulation by declaring the use of animals to be “supremacist” and “speciesist.” Thus, it calls for the end of the use of pig, chicken, pig, rat, snake and other terms as pejorative terms to “stand up for justice by rejecting supremacist language.”

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Congress, Politics

Pelosi Declares That The “Enemy Is Within The House of Representatives” In Call For More Security

House Speaker Nancy Pelosi has been attacking Republicans members as traitors in a continuation of the reckless rhetoric from the last four years on both sides. Despite a desire for greater unity from voters, Pelosi has sought to capitalize on rather than close those divisions  while other Democrats are calling for blacklists and retaliatory measures. The Speaker has now doubled down on these attacks by claiming that the need to increase security is due in no small degree to the “enemy within” in reference to the Republican ranks. As with her prior conduct as Speaker, Pelosi continues to refuse to recognize any obligation to the institution in seeking consensus and reconciliation. Continue reading “Pelosi Declares That The “Enemy Is Within The House of Representatives” In Call For More Security” →

Congress, Constitutional Law

Democrats Introduce Senate Bill To Make D.C. The 51st State

Sen. Tom Carper (D-Del.) and other Democratic senators are introducing a bill for D.C. statehood today, a proposal with heavy opposition in the public in continuing polls.  Indeed, the bill was one of the reasons that members and advocates demanded the killing of the filibuster rule to force through the change in status based on a bare majority. If successful, it would give the Democrats two more senators in a city-state that will expected to remain reliably blue.  I have testified repeatedly on this issue.  There are strong arguments for changing the status of the District and statehood is a viable option. It would clearly be constitutional unlike past proposals. The question is whether it is the best option for the country.  Roughly 20 years ago, I proposed a “modified retrocession plan” that would be an alternative if the Congress wanted full voting rights for citizens of the District. Continue reading “Democrats Introduce Senate Bill To Make D.C. The 51st State” →

Courts, Politics

Federal Court Blocks Biden Executive Order On Deportations Under the Same Law Used Against Trump

During the Trump Administration, Democratic Attorneys General used the Administrative Procedure Act (APA) to delay Trump policies pending satisfaction of requirements for notice and comment periods. Even though President Barack Obama did not satisfy APA conditions in imposing original rules, the Supreme Court enforced such procedures to reverse prior orders.  During that litigation over the Trump executive orders, I repeatedly noted that the Democratic challengers in court were making arguments that would likely used against the next Democratic president in seeking to quickly undo Trump’s orders. That has now come to past. When Biden took power, he immediately did what Trump did in taking unilateral acton without APA notice.  District Court Judge Drew B. Tipton ordered this week that the directive from acting Homeland Security Secretary David Pekoske was not in apparent compliance with the same law.

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Constitutional Law, Media, Politics

“Sua Sponte”: Critics and Veterans Slam Media Attack On Sen. Cotton’s Service Claims

There is an ongoing controversy triggered by an article in Salon suggesting that Sen. Tom Cotton had lied about being an Army Ranger in describing his military service. The Salon article by Roger Sullenberger claimed that Arkansas senator Tom Cotton “felt compelled to repeatedly falsify that honorable military record.” It is an accusation that borders on a claim of stolen valor and could not be more insulting, particularly for someone with a highly distinguished military service record. The article has been denounced as part of a smear campaign by conservative sites like National Review but also veterans as unfair and inaccurate.

Ironically, the regimental motto of the Rangers is the Latin phrase sua sponte, or “of their own accord.” There appears debate on whose accord is controlling on such questions.

Continue reading ““Sua Sponte”: Critics and Veterans Slam Media Attack On Sen. Cotton’s Service Claims” →

Congress, Constitutional Law

“Dead Letter”: Almost Half Of The Senate Votes In Support Of Motion Challenging The Constitutionality Of A Second Trump Trial

In a critical vote at the start of the second Trump impeachment trial, almost half of the Senate voted in favor of a motion by Sen. Rand Paul challenging the constitutionality of an impeachment trial for a former president. The motion was subject to a tabling motion, making this a procedural vote and does not necessarily lock in any member. However, it was the first test of the view of the body on this unresolved question. After spending a good amount of time with all of the Republican senators just before the vote, I was not surprised by the 45-55 vote. Members on both sides of this issue had a good faith and civil exchange on the historical and constitutional basis for such a trial. Figures ranging from President Joe Biden to Sen. Susan Collins (R., Maine) have said that they believe it is clear that there are insufficient votes for conviction and that Donald Trump is likely to be acquitted. Other senators are now calling the trial a “dead letter” or “dead on arrival.“

Continue reading ““Dead Letter”: Almost Half Of The Senate Votes In Support Of Motion Challenging The Constitutionality Of A Second Trump Trial” →

Congress, Constitutional Law, Free Speech, Media, Politics, Society

Twitter Summons “The Birdwatchers” In Expanding Campaign Against “Misinformation”

Twitter Logo

With much fanfare (and catchy background music) Twitter has launched the Birdwatch program, a platform that seeks to enlist the “community” to identify and comment on misinformation contained in tweets.  The company will initially select 1,000 such “Birdwatchers” in its monitoring of information exchanged on its once neutral platform.  Not surprisingly, many of us are not thrilled by the program. While the programs does not allow direct removal of tweets, it is clearly designed to flag tweets that the majority views as misleading. That can then be used by Twitter to further support its expanding censorship of information on the Internet.

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Academia, Bizarre, Free Speech

Impeachment Mania Hits Universities: Students Are Facing Trials Or Removals Over Political Views

In his dissent in Olmstead v. United States, 277 U.S. 438 (1928), Justice Louis Brandeis famously wrote that “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” While that observation concerns criminal wrongdoing by the government, it seems particularly apropos today on our campuses where impeachments and removals are now seemingly the rage.  For the last four years, members of Congress and legal experts have called for impeachments based on everything from Trump’s tweets on NFL kneeling to his denouncing prosecutors. Most recently, this includes the use of a “snap impeachment.” The latest such example is unfolding on the campus of the Rochester Institute of Technology where a student senator is facing impeachment after defending the right of campus police to wear a Blue Lives Matter face mask.

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Columns, Congress, Constitutional Law, Criminal law, Politics

Do The Democrats Really Want Unity?

Below is my column in the Hill on the increasingly divisive rhetoric and actions taken on Capitol Hill. Rather than plot a course to between greater unity, many are seeking to muscle through extreme measures that will only further aggravate and deepen our divisions.  The media from the New York Times to the Los Angeles Times have run editorials encouraging aggressive moves to secure control of the Senate, including the ending of the filibuster. That move would make every vote a muscle play — producing sweeping changes in a country that is clearly divided and seeking political compromise.

Here is the column: Continue reading “Do The Democrats Really Want Unity?” →