RES IPSA HITS 39,000,000

Yesterday, we passed the 39,000,000 mark in views on the blog. 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 in the top legal blogs in the world and I am particularly proud of our growing international readership. 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:

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Gerhardt: The Entire White House Defense Team Will Face Bar Charges

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There have been suggestions that the White House defense team could be brought up on bar charges for their arguments in the Senate. I have previously written that such statements by Speaker Nancy Pelosi and others are vindictive and ill-informed. The White House team were effective advocates for their clients and we do not disbar lawyers for making arguments or defending individuals that we do not like. I was surprised and disappointed therefore that my fellow witness from the Trump impeachment hearing, North Carolina Law Professor and CNN Legal Analyst Michael Gerhardt joined this dubious argument on CNN yesterday. The call for ethics charges seems dangerously close to the view of Lawrence O’Donnell that Trump defenders are barred from his MSNBC program because they are all “liars.”

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The Dershowitz Defense: How Dershowitz Made The Case Against His Own Defense

Below is my column in USA Today on the Dershowitz defense and why he reached the right conclusion for manifestly the wrong reason. Dershowitz has maintained that his views were distorted by the media and critics, but at base his argument is still deeply flawed. The problem is not (and never should be) that he is at odds with the vast majority of constitutional scholars. The problem is that he is at odds with the vast majority of constitutional sources. Moreover, his examples if anything proved the case against his defense.

Here is the column:

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The Supers Are Back: DNC Members Planning Move To Block Sanders . . . Again

In 2016, many of us objected to the concerted effect of the Democratic establishment and the Democratic National Committee to rig the primary for Hillary Clinton. Later it was revealed that the Clintons have largely taken over the DNC by taking over its debt and the DNC openly harassed and hampered Sanders at every stage. Despite this effort, Sanders came close to beating Clinton, who has never forgiven him for contesting a primary that she literally bought and paid for with the DNC. The simmering rage was still evident recently in Clinton’s attack on Sanders and suggestion that she might not support him if he were the nominee (a suggestion that she later took back). She continued her attacks this week and it has served to remind voters, particularly younger voters, of the DNC interference with the primary election. After the scandal, the DNC pledged to reform itself and reduce the power of establishment figures and superdelegates at the convention. Now, however, Politico is reporting that DNC members are again discussing changing the rules to stop Sanders. This follows the selection of Clinton allies to control the convention and a shocking level of anti-Sanders bias shown by CNN at the last debate. In the meantime, the DNC has been criticized for clearing the way for Michael Bloomberg by changing its rules to help him make the debates.

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Gabbard Blocked By CNN From Town Hall Events Despite Greater Support Than Invited Candidates

As the DNC deals with a report that there is an effort by some members to work to block Sanders at the national convention, presidential candidate Rep. Tulsi Gabbard (D., Hawaii) is also facing a concerted effort by the Democratic establishment to cut her off from voters. In a particularly chilling ratcheting up of the anti-Gabbard rhetoric in October, CNN analyst Bakari Sellers called her a Russian puppet — an accusation the mirrors the allegation by Hillary Clinton that she is an actual Russian asset. The Hill has an article on the controversy that notes that CNN invites other candidates with less support in polls and has refused to respond to queries on why she is being locked out. This follows the shockingly biased questions targeting Bernie Sanders by CNN reporter Abby Phillips.

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Rehnquist Versus Chase: History Offers Roberts Few Models For Defining His Role

Below is my column in The Hill newspaper on the uncertain role of Chief Justice John Roberts as the presiding officer of the Senate impeachment trial. I have already raised some questions over Roberts’ refusal to read a question from Sen. Rand Paul after Paul insisted that the question did not ask for or use the identity of the whistleblower. Even more significant questions could arise as early as today.

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Pelosi Questions Why The President’s Lawyers Are Not Disbarred

Speaker Nancy Pelosi (D., Cal.) made an extraordinary statement yesterday that suggests that lawyers representing President Donald Trump should be disbarred: “I don’t know how they can retain their lawyer status, in the comments that they’re making.” Just as I have been highly critical of President Donald Trump’s attacks on Adam Schiff and others, this is a truly outrageous suggestion. These lawyers are performing a key function in our constitutional system in not just representing an accused person but fulfilling a vital role in an impeachment trial. Because Pelosi disagrees with their legal arguments, she insinuates that they should not be licensed attorneys. It is precisely the type of ad hominem attack that Democrats criticize with the President.

Pelosi added that Trump “will not be acquitted” even if he is acquitted — entirely decoupling the Democratic position from either constitutional or ethical norms.

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Former CNN Anchor Denounces Buttigieg’s Reference To The “American Heartland” As Racist

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On the campaign trail, Mayor Pete Buttigieg (like Nancy Klobucher and other presidential candidates) has emphasized his ties to the “American Heartland.” The Midwest has long been viewed as an area known for moderate and common sense politics. However, a recent reference by Buttigieg to his roots in the “American Heartland” has led former CNN anchor Soledad O’Brien to denounce his words as a racist “dog whistle.”

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Schiff Repeats Flawed Position That A Two-Thirds Vote Might Be Needed To Overrule The Chief Justice

I recently wrote about the clearly incorrect theory of Neil Katyal that a two-thirds vote would be needed to overturn a ruling of the Chief Justice on calling witnesses. What was astonishing is not just that the New York Times gave credence to the theory but that the lead House manager would reference it last night. It is wildly at odds with the rules and the traditions governing impeachment. Strong arguments could be raised that the presiding officer cannot even break ties on such issues (despite the fact that Chief Justice Salmon Chase maintained such a robust view). With the confrontation today between Chief Justice Roberts and Sen. Rand Paul, this suggestion has bearing on possible votes today or tomorrow.

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Justice Department Drops Demand For Jail For Flynn

The Department of Justice has dropped its demand for former National Security Adviser Michael Flynn to serve time under his plea agreement. Flynn was attempting to withdraw his plea after the Justice Department set out in what was an overtly vindictive campaign against him in court. The Flynn case remains a troubling matter for those who have followed the Russian investigation. He pleaded guilty to a false statement that seems relatively minor in comparison to false statements made by Justice officials like Andrew McCabe or leaks by figures like James Comey.

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Was The Bolton Leak Too Perfect? The Senate Grapples With The First Perry Mason Moment Of A Presidential Impeachment

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Below is my column in the Washington Post on the still unfolding drama surrounding the leaked contents of the book by former National Security Adviser John Bolton.

Here is the column:

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“If I Have To Fight For Recognition, I Will”: Paul and Roberts On Collision Course Over Whistleblower Questions [UPDATED]

Yesterday’s question and answer period was a largely choreographed exercise with legal teams spontaneously responding to questions with preset video clips and visual displays. However, there was one major but largely overlooked moment that raises some serious issues over the authority of the presiding officer vis-a-vis the Senate. In the midst of the questions, Robert spiked a question from Sen. Rand Paul (R, Ky). It concerned the whistleblower and the underlying legal premise for barring the question could prove controversial today. UPDATE: Roberts again refused to read the question of Sen. Paul. After the Chief Justice refused to ask his question, Rand walked out of the Senate.

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Mutually Assured Destruction: Unable To Block Witnesses, The GOP Moves To “Plan B”

In my recent Washington Post column, I stated that the Bolton leak accomplished its obvious design to throw the White House defense into disarray and to secure the votes for witnesses. However, I noted that the success could come at a price through ” a mutually assured destruction option: allow both sides to lay waste to each other and leave it to the public to pick through the ruins.” That appears to be the “Plan B” being discussed by Republicans in a game of chicken over witnesses.

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Tribe: The Choice is Now Between Witnesses and Dictatorship

While I disagreed with Harvard Professor Alan Dershowitz on this theory of impeachment, I recently praised his presentation in the Senate as a cogent and well-constructed case for the defense. Clearly, his colleague Harvard Professor Laurence Tribe does not share my view. He denounced Dershowitz’s argument as “remarkably absurd and extreme and dangerous.” In this presentation, Dershowitz defended his own switch on the issue of the prerequisite of criminality for impeachment by noting that Tribe had also switched his view. Tribe went further to declare that the choice was now between witnesses and “dictatorship.” Even as someone who favors witnesses, I fail to see the imminent danger of dictatorship on the issue. Indeed, I understand the reluctance over witnesses aside from any desire to protect Trump. I believe senators have a legitimate interest in not creating precedent allowing the House to impeachment on such a slipshod and incomplete record. That is why I proposed an alternative solution.

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Trump Attacks Fox News For Interviewing Democrats

Recently, I criticized Lawrence O’Donnell for proudly proclaiming that MSNBC would not invite Trump defenders on the network because they are liars. O’Donnell’s comment brought a rare joining of voices from across the political spectrum denouncing the knowing bias in such statements. Once again, however, President Donald Trump has supplanted the story with his own equally objectionable statement. On Tuesday, he attacked Fox News for interviewing Democrats like Sen. Chris Van Hollen and declared “this will be the beginning of the end for Fox.” If so, it would mean the end of journalism since Fox News was merely offering both sides of these stories in interviewing one of the senators who will be voting in the upcoming trial.

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