Columns, Congress, Constitutional Law, Criminal law, Justice, Media, Politics

Barr’s Appointment Of Special Counsel Leaves Biden and Democrats In A Muddle

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:

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Congress, Lawyering, Media, Politics

Democratic Members File Bar Complaint Against Trump Counsel Joe diGenova
YouTube Screenshot

We previously discussed the abusive move by Rep. Bill Prascell (D., N.Y.) to seek the disbarment of roughly a dozen Trump and Republican lawyers for challenging election results. Such calls have become common place. Indeed, during the impeachment trial of President Trump, North Carolina Law Professor Michael Gerhardt predicted that the entire Trump legal team would be disbarred after their representation of the President.  Now, Democratic Reps. Kathleen Rice (D-N.Y.) and Ted Lieu (D-Calif.), have filed a complaint alleging direct violations of the Rules of Professional Conduct against Trump lawyer Joe diGenova for his recent controversial remarks about fired Cybersecurity and Infrastructure Security Agency head Chris Krebs. In an interview, diGenova called for Krebs to be “drawn and quartered” for his failure to protect this election. While noting that I did not believe that diGenova was actually calling for violence, I immediately criticized those comments.  However, despite the view of ethics professor Stephen Gillers to the contrary, I do not believe that this is even remotely an ethical violation. It is however a clear use of bar rules for a political purpose.  Notably, Rice and Lieu, both lawyers, have been utterly silent on the campaign of harassment and abuse by groups like the Lincoln Project. There have been no calls for disbarment of those attorneys or investigations into threats of violence against Republican lawyers. Indeed, I have not read a single lawyer or law firm supporting the Lincoln Project denouncing its campaign to harassment fellow lawyers — a campaign that began shortly after Joe Biden was declared the presumptive winner of the election.

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Bizarre, Constitutional Law, Politics, Society

Flynn Retweets Call For Trump To Declare Martial Law To Hold New Elections

Retired Gen. Michael Flynn embraced an extreme call this week for President Donald Trump to declare martial law to hold a new presidential election. In a tweet, Flynn appeared to endorse a call from We the People Convention to declare martial law. He added “Freedom never kneels except for God.” As someone who long criticized Flynn’s prosecution as abusive, his association is deeply disappointing. While it does not alter the view of the prosecution, it will alter the view of Flynn to support such a call. Continue reading “Flynn Retweets Call For Trump To Declare Martial Law To Hold New Elections” →

Criminal law, Lawyering

Lawyers Under Investigation For Alleged Fraudulent Voting Schemes In Georgia

We recently discussed how figures like New York Times columnist Tom Friedman calling on people to move to Georgia to rig the vote in favor of a Democratic takeover of the Senate. It did not seem to matter to either the newspaper or Friedman that he was encouraging the commission of a felony. Yet, Friedman is not a lawyer. What is more disconcerting is that lawyers are alleged to be involved in such efforts.  Recently, Georgia officials confirmed that they are investigating The New Georgia Project — a group founded by lawyer Stacey Abrams — for allegedly seeking to register out of state voters and deceased individuals. On the Republican side, Florida attorney Bill Price is facing a more direct and serious investigation than Abrams (who has not been personally implicated in such actions). Price is shown in a video boasting of his own registration in Georgia at the home of his brother and encouraging others to do the same. Continue reading “Lawyers Under Investigation For Alleged Fraudulent Voting Schemes In Georgia” →

Academia, Constitutional Law, Hikes, Lawyering, Supreme Court

Turley To Speak at USC Law School on the Supreme Court

This afternoon I have the pleasure of joining a distinguished panel to speak on the Supreme Court at the University of Southern California’s Gould School of Law. The event is part of the LACBA Business Law Section 2020 Virtual Institute for Corporate Counsel and will also include Michael J. Gerhardt of UNC School of Law and Pamela S. Karlan of Stanford Law School who testified with me during the Trump impeachment hearing.  It will also include Beth S. Brinkmann of Covington & Burling LLP.

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Lawyering, Politics, Society, Supreme Court

“The Supreme Court Needs A Breather”: Law Professor Calls For Replacement of Supreme Court With A “Specialized Court” For Constitutional Questions

We have been discussing calls to pack the Supreme Court and President-Elect Joe Biden pledging to assemble a commission of experts to fundamentally change the Supreme Court after it added another conservative justice to the majority. Boston College Law Professor Kent Greenfield is already putting forward one such proposal: just replace the Supreme Court on constitutional questions. Greenfield calls for the establishment of a constitutional court that would strip the Supreme Court of the ability to rule on such question because “the Supreme Court needs a breather.”  That “breath” however only became a perceived need for many academics when the conservative conservative on the Court grew to 6-3. Continue reading ““The Supreme Court Needs A Breather”: Law Professor Calls For Replacement of Supreme Court With A “Specialized Court” For Constitutional Questions” →

Academia, Courts, Politics, Supreme Court

The Census Case: Did The Court Reject Micromanagement But Embrace Microaggression?

The long-awaited argument in Trump v. New York revealed a Court that seemed eager for an off-ramp rather than a merits ruling in the census dispute. Justices seemed skeptical of the Trump Administration’s interpretation of “persons” to exclude undocumented individuals while they also expressed skepticism that the Court needed to intervene at this stage. Notably, one of those expressing skepticism over the exclusionary interpretation was Associate Justice Amy Coney Barrett. I have previously stated that I believe the Administration’s interpretation is at odds with the long-standing meaning of “persons” under the Constitution as including all individuals residing in the United States regardless of their status. Some of the justices balked at micromanaging communications between a president and a federal agency in prohibiting certain information from being transmitted.  One thing however stood out in the argument: the use of the term “illegal alien” by various justices, including Justice Sonia Sotomayor. The term has been denounced in some states and various universities as a “microaggression.” Continue reading “The Census Case: Did The Court Reject Micromanagement But Embrace Microaggression?” →

Bizarre, Media, Politics

Daily Beast Editor Calls For “Humiliation” and “Incarceration” For Trump Supporters

We have been discussing the rising threats against Trump supporters, lawyers, and officials in recent weeks from Democratic members are calling for blacklists to the Lincoln Project leading a a national effort to harass and abuse any lawyers representing the Republican party or President Trump. Others are calling for banning those “complicit” from college campuses while still others are demanding a “Truth and Reconciliation Commission” to “hold Trump and his enablers accountable for the crimes they have committed.” Now, Daily Beast editor-at-large Rick Wilson has added his own call for “humiliation,” “incarceration” and even ritualistic suicides for Trump supporters in an unhinged, vulgar column. Wilson declared “[o]nly exposure, pain, humiliation, and (inshallah) incarceration will lead to a moment of reckoning for the GOP.”

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Free Speech, Media, Politics

“And Why Stop There?”: CNN Analyst Calls For Sweeping Regulation of Free Speech On The Internet [Updated]

We previously discussed the unrelenting drumbeat of censorship on the Internet from Democratic leaders, including President-elect Joe Biden. Those calls are growing as anti-free speech advocates see an opportunity in the Biden Administration to crackdown on opposing views. One vocal advocate of censorship and speech controls has been CNN media analyst Oliver Darcy who just ratcheted up his call for de-platforming opposing views. Like many anti-free speech advocates, Darcy simply labels those with opposing views as spreading “disinformation” and demands that they be labeled or barred from social media. In a recent newsletter, Darcy calls for every tweet by Trump to be labeled as disinformation while asking “and why stop there?” Precisely. Once you cross the Rubicon of speech regulation, there is little reason or inclination to stop.  Just look at Europe. Continue reading ““And Why Stop There?”: CNN Analyst Calls For Sweeping Regulation of Free Speech On The Internet [Updated]” →

Constitutional Law, Free Speech, Media, Politics

Trump Administration Moves To Bar Any Group Supporting A Boycott of Israel

For years, we have discussed the effort of states to bar individuals, groups, and businesses from state contracts if they support the Boycott, Divestment, and Sanctions (BDS) movement against Israel. Other Western nations have also moved to declare BDS “hate speech.” I have previously opposed such laws as unconstitutional and an attack on free speech. I do not support the BDS movement but I believe that it is a form of political speech that should be protected. For that reason, the move this week by Secretary of State Mike Pompeo is alarming. He has declared that any non-profit groups supporting BDS will be cut off from government funding. Continue reading “Trump Administration Moves To Bar Any Group Supporting A Boycott of Israel” →

Congress, Politics

The Case Against Sally Yates

Below is my column in The Hill on the possible nomination of Sally Yates as the next United States Attorney General. One of the names on the short list is Judge Merrick Garland who would not only be unifying for the country but unassailable at a confirmation hearing. However, Yates’ record raises serious questions about her judgment and actions at the Justice Department.

Here is the column:

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Criminal law, Justice, Lawyering, Politics

Carter Page Files $75 Million Lawsuit Against The FBI, Comey, McCabe, and Others

Former Trump campaign aide Carter Page on Friday has filed a $75 million lawsuit against the Federal Bureau of Investigation (FBI) and former high-ranking officials, including former FBI Director James Comey, and Andrew McCabe. The complaint includes eight claims that range from violations to the Foreign Intelligence Surveillance Act (FISA), Federal Tort Claims Act, a Bivens claim, and Privacy Act. It is very well written, but it will be challenging given the discretionary authority of justice officials in some of these actions. For full disclosure, I previously discussed Page’s case with both Page and his counsel (particularly after a column on his case). I have been a critic of his targeting for years and have spoken with Page on the investigation.  I view Page as a victim of an abusive federal investigation and ideally he should be afforded relief for his treatment. Federal case law however presents barriers for people in his position. If he were to prevail, it could create important precedent protecting citizens and civil liberties for the future.

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Constitutional Law, Free Speech, International

Norway Criminalizes Hate Speech Against Transgender People . . . In Private Homes or Conversations

We have previously discussed the alarming rollback on free speech rights in the West, particularly in Europe. The move to criminalize speech has led to an insatiable appetite for new limitations and broader prosecutions. Norway is an example of this headlong plunge into speech controls and crimes in the West. This week the legislature adopted (without even a vote) a new criminal law that punishes people for saying anything deemed hate speech toward transgender people in their own home or private conversations. Continue reading “Norway Criminalizes Hate Speech Against Transgender People . . . In Private Homes or Conversations” →

Bizarre

Breaker News: Boston Police Shot Them Under “Rule 303”
YouTube Screenshot, “Breaker Morant”

By Darren Smith, Weekend Contributor

I found recently what may either be an unfortunate coincidence, a bad joke, or the invisible hand of Boer War veteran Harry “Breaker” Morant in police policymaking. In jest, could it be that the Boston Police Department took a line right out of the Australian film Breaker Morant when it codified the department’s Use of Deadly Force policy?

The irony might be for Australian war film buffs that the Boston Police, even when justified, actually do shoot people under “Rule 303”.

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Justice, Politics, Society

An Island of Virtue Among Today’s Elected Officials: Water District & Sewer District Commissioners

By Darren Smith, Weekend Contributor

I’ll go out on a limb and make a proposal, based mostly on anecdotal observations I have made during my adult life of both politicians and elected officials–there is a difference–and what these individuals have often gotten us into. I have come to the conclusion that among the various cultivars of politics, the two positions that for me have consistently remained the most benevolently virtuous, and least damaging to ordinary people, are not the high-profile, ostentatious seats in various houses of parliament, legislatures, or a presidency. They are often the more behind-the-scenes, yet foundationally necessary public service elected officials often known as Water District and Sewer District Commissioners.

They might not be the most well-known, which in itself is an admirable quality, but they serve for me as a model of how we would be as a society better off if politicians adopted the approach of these commissioners and not that of petty tyrants or worse that seem to be attracted to politics.

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