Below is my column in the Hill on the conclusion of the case of Gen. Michael Flynn, which ended (not surprisingly) with one last gratuitous and controversial act from the court. Judge Emmet Sullivan decided to effectively flog Flynn on his way out of his court.
Here is the column: Continue reading “Flynn’s Cadaver Synod: The Court Dismisses A Dead Case But Not Before It Flogs The Corpse”
We often discuss media coverage and accuracy on developing legal and political controversies. Much of this discussion recently has focused on the bias shown by the media in the last four years. I have worked for the media as a legal analyst and columnist for years, but I have never before seen this raw and open bias in major media. At the same time, academics are rejecting the very concept of objectivity in journalism in favor of open advocacy.
This morning, Fox News called out all of the networks for zero coverage of the bombshell story from Axios that Rep. Eric Swalwell may have had a close relationship with a suspected Chinese spy who fled to China a few years ago. Many of us were struck by the lack of coverage, particularly given the position of Swalwell on the House Intelligence Committee and his former bid for the presidency. It was particularly striking when the media is now reluctantly covering the Hunter Biden story after a long blackout before the election. Yet, the most stark comparison is with the exhaustive coverage given the highly analogous story involving an alleged spy, Maria Butina, who had an affair with a high-ranking figure in the National Rifle Association. Continue reading “Is the Media Burying The Swalwell Story?”
We have have been discussing how writers, editors, commentators, and academics have embraced rising calls for censorship and speech controls, including President-elect Joe Biden and his key advisers. The erosion of free speech has been radically accelerated by the Big Tech and social media companies. The level of censorship and viewpoint regulation has raised questions of a new type of state media where companies advance an ideological agenda with political allies. The state media criticism was never more compelling than in the announcement of YouTube this week that it would now remove videos that question the victory of President-elect Joe Biden. The election is over but YouTube will now scrub away any dissenting views that the election was marred by fraud. It now appears to be protecting history itself from things deemed disinformation — the ultimate calling of the corporate censor.
Continue reading “YouTube Declares It Will Censor Videos Questioning Biden’s Victory”
Hunter Biden confirmed yesterday that he is indeed under investigation by the U.S. attorney’s office in Delaware for possible tax violations. For years, the media has maintained a virtual blackout on Hunter Biden stories even as some of us noted that a 2019 subpoena indicated an active criminal investigation. Apparently, there was no way to “say this nicely” so the media said virtually nothing at all. The son of the incoming president will now be investigated by his father’s Justice Department. In the meantime, many in the media are still struggling with the journalistic version of the denial stage in the Kübler–Ross stages of grieving. The move during the lame duck period could reflect a desire to iron plate the investigation before the arrival of a Biden Justice Department. It will certainly add a new complication to any already difficult situation with a pending Special Counsel investigation.
Continue reading “Hunter Biden Is Under Federal Investigation”
We have been discussing how reporters, editors, commentators, and academics have embraced rising calls for censorship and speech controls, including President-elect Joe Biden and key advisers. This includes academics rejecting the very concept of objectivity in journalism in favor of open advocacy. Now, Columbia Journalism Dean and New Yorker writer Steve Coll has denounced how the First Amendment right to freedom of speech was being “weaponized” to protect disinformation. That’s right. A journalism dean and writer declaring that the problem is that free speech itself is allowing too much freedom on the Internet and other forums. Continue reading ““Free Speech Is Being Weaponized”: Columbia Dean and New Yorker Writer Calls For More Censorship”
Christopher Krebs, has filed a lawsuit against Trump attorney Joe diGenova over this controversial joke that Krebs should be “drawn and quartered” and then “shot” for his failures as the former head of U.S. cybersecurity. The lawsuit strikes me as meritless under governing tort doctrines. While Mark Zaid declared that “no rational person” who heard diGenova calling for a person to be drawn and quartered and then shot “would have taken it as ‘jest,’” many of us took the comment as an obvious use of exaggerated rhetoric. While I immediately condemned the language, I did not view it as a serious call for violence. Torts cases of defamation often turn common understanding of such expression as jokes or opinion. The lawsuit not only contradicts governing case law but threatens constitutional protections for free speech and the free press in seeking such tort relief.
Continue reading “Krebs Files Lawsuit Against diGenova, The Trump Campaign, and Newsmax”
With the nomination of California Attorney General Xavier Becerra for Secretary of the Department of Health and Human Services, the list of presumed frontrunners for Attorney General is narrowing. One name remains prominently at top: former Associate Attorney General Sally Yates. Yates’ appointment would be one of the most controversial for Biden and would likely lead to an intense confirmation fight over her standoff with President Donald Trump at the start of his Administration as well as her role in the Russian investigation. However, in a strange way, Yates’ controversy could be exactly what both President Trump and President-Elect Joe Biden need if they are looking a basis for a self-pardon.
Continue reading “Is Biden About To Help Make The Case For A Self-Pardon?”
This morning, we passed the 47,000,000 mark in views on the blog. We only just passed 46,000,000 but November had the greatest traffic for the blog in its history. The blog continues to grow with new regular commenters and a growing international readership. Again, we thank our loyal readers who return every day to discuss contemporary legal, political, and occasionally bizarre stories. We have used these moments to give thanks for our many regular readers around the world and give you an idea of the current profile of readers on the blog. We continue to rank with the top legal blogs in the world. As always, I want to offer special thanks for Darren Smith who has continued to help manage the blog and help out folks who encounter posting problems.
So here is our current profile:
We have recently been discussing the arguments for and against presidential self-pardons — a debate that has raged for decades among academics. Some of us believe that the absence of a limitation for such pardons should carry the day on the constitutional interpretation. Judge Richard Posner discussed the issue in commentary and also concluded that “it has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.” Others believe that the intent is clear against such self-dealing even if the language is silent. What is notable is that, while we disagree on this interesting historical and constitutional question, we are virtually unanimous in our view that such self-pardons are inherently abusive and should not be granted. This is a good-faith disagreement and I have never argued that the answer is clear. I have tremendous respect for many on the other side of this debate including former Judge Michael Luttig, who just penned a thoughtful column in the Washington Post arguing against such self-pardons. I recommend that you read the column in full but I wanted to respond to some of its more salient points. Continue reading “Self-Pardons: A Response To Judge Michael Luttig”
Just before I was interviewed today on Fox about ongoing challenges to shutdown orders, Admiral Brett Giroir was interviewed and gave what must have been welcomed views on the science behind pandemic orders. A hearing is scheduled tomorrow in one of the challenges by businesses in California to the lockdown ordered by Governor Gavin Newsom. Giroir however stated that there was no evidence or science supporting the type of categorical lockdown in states like California, particularly bans on outdoor dining. The statement presents a potential conflict with Dr. Anthony Fauci. It certainly contradicts the common narrative in the media and the recent election. Continue reading “Admiral Giroir Slams Bans On Outdoor Dining As Without Scientific Basis”
Below is my column in the Hill on the controversy over presidential self-pardons. Many academics have long expressed the view that a president can issue a self pardon. Judge Richard Posner discussed the issue in commentary and also concluded that such a pardon could occur. Posner stated “It has generally been inferred from the breadth of the constitutional language that the president can indeed pardon himself.” This has been a long-standing debate and there is an honest and interesting debate on the issue. For some of us, there is a difference between condemning such self-pardons as self-dealing and declaring that the Constitution clearly bars such presidential acts. That does not change because the subject of the analysis is now President Donald Trump.
Here is the column: Continue reading “Yes, Trump Can Pardon Himself But He Should Not Do So”
The Trump campaign finally succeeded in one of its challenges yesterday to the extent that it was granted a court order for access and a forensic investigation of roughly two dozen Dominion voting machines. The machines are located in rural Antrim County where roughly 6000 votes were initially assigned to President-elect Joe Biden but then corrected and tabulated in favor of President Donald Trump. Four weeks ago, we discussed this controversy and the concern that such acknowledged human error could occur in other districts. The order from Judge Kevin Elsenheimer, however, concerns not the presidential election but a recounting of ballots in a village marijuana proposal.
In a victory for the Trump Administration, the United States Court of Appeals for the Fifth Circuit reversed a lower court which ruled that the Trump Administration could not use $3.6 billion from military construction funds for a construction of new border wall. It was a mixed week for the White House. The ruling comes as another judge ordered the reinstatement of the DACA program. Continue reading “Fifth Circuit Rules In Favor Of Use Of Military Funds For Border Wall”
We have been discussing the previously announced use of terrorism laws to address violent protests around the country, a move that I have criticized as raising civil liberty concerns. There have been cases that arguably fit a terrorism model however and now the Justice Department has charged a new such case against two women associated with Antifa and anarchist groups. Samantha Frances Brooks, 27, and Ellen Brennan Reiche, 23, were charged with terrorism crimes in allegedly trying to place a “shunt” on railroad tracks to cause a train to derail. Continue reading ““It’s Going Down”: The Justice Department Charges Two Women on Terrorism Charges”
Below is my column in USA Today on the implications of the appointment of U.S. Attorney John Durham as a Special Counsel. House Intelligence Committee Adam Schiff and other Democrats have already denounced the move and called for the next Attorney General to consider rescinding the appointment. While Schiff previously called for legislation to protect Special Counsel Robert Mueller to complete his work without interference from the Attorney General, he ramped up the rhetoric against Durham as leading a “politically motivated investigation.” Durham was previously praised by Democrats and Republicans alike as an independent, apolitical, and honest prosecutor. After insisting that the public has a right to see what has been uncovered over years of investigation by Mueller, they are now pushing to end the Durham investigation and forestall any final public report.
Here is the column:
Continue reading “Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle”