Congress, Constitutional Law, Politics

An “Indelible Record”: President Sends Incendiary Letter To The House Speaker On Eve Of His Impeachment

President Donald Trump lashed out at Speaker Nancy Pelosi and the House Democrats yesterday on the eve of today’s impeachment vote. The letter, which can be read here, unleashed invective and angry responses to the expected impeachment. While the President quotes me in the letter, most of the letter has the signature style of the President and immediately drew objections over its tenor and assertions. Pelosi called the letter “ridiculous” and “sick.”

The President declares “It is time for you and the highly partisan Democrats in Congress to immediately cease this impeachment fantasy and get back to work for the American People. While I have no expectation that you will do so, I write this letter to you for the purpose of history and to put my thoughts on a permanent and indelible record.”

This letter will certainly prove indelible.

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Bizarre, Congress, Constitutional Law, Criminal law

Swalwell: Failing To Turn Over Documents Is Proof Of Guilt

Rep. Eric Swalwell, D-Calif., has made sensational statements into a signature style over the last couple years. However, this week Swalwell appears to be contesting the touchstone of due process: the presumption of innocence. On Tuesday, Swalwell declared that, President Donald Trump refuses to give Congress the documents and witnesses that it has demanded, he is clearly guilty of all charged offenses. Swalwell declared “We can only conclude that you’re guilty.” Trump has gone to the courts to challenge the demands under presidential immunities and privileges.

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Congress, Constitutional Law, Courts, Lawyering, Media

“A Judge Would Be Disqualified”: Justice Ginsburg Again Wades Into Political Controversies In Interview

I have previously criticized Supreme Court Justice Ruth Bader Ginsburg for her continued political comments in speeches to liberal and academic groups.  While not unique on the Court, Ginsburg has repeatedly crossed the line of traditional public speaking in discussing political controversies, pending issues before the Court, and even criticizing the President. Despite repeated controversies in speaking publicly on political issues, Ginsburg remains undeterred.  Earlier this year, Ginsburg again repeated her view that sexist voters prevented Hillary Clinton from being elected president — a repeat of controversial comments in her 2017 speech. This week, Ginsburg commented on the merits of President Donald Trump’s call for a review of the Supreme Court and even criticized senators who have made public statements about the impeachment.

Indeed, the most ironic part of her commentary was Ginsburg noting how inappropriate it is for senators to be discussing their views of the merits before any actual impeachment. She insisted “if a judge said that, a judge would be disqualified from sitting on the case.” That raises a rather uncomfortable question as to what Ginsburg was doing in that very interview.

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Criminal law, Media, Politics

Schiff Under Fire For Denying Any Knowledge Of FBI Abuses

Various commentators, including Fox News senior political analyst Brit Hume, have expressed disbelief with the statement of House Intelligence Committee Chairman Adam Schiff, D-Calif., on Fox News Sunday that he had no idea of the extensive FISA abuse found by Inspector General Michael Horowitz. I share that view. Schiff’s predecessor at the House Intelligence Committee, Devin Nunes, raised many of these abuses which were adamantly denied by Schiff for months. The media for its part virtually mocked such claims as conspiracy theories and false news. Now the media and Schiff is claiming total surprise by the findings (if they acknowledge them at all). The lack of media scrutiny over Schiff’s denial is breathtaking and explains why many voters do not trust reporting over the various investigations.

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Courts, Criminal law

Flynn Judge Accuses Defense Counsel In Curious Plagiarism Claim
Judge Emmet Sullivan

It is bad enough when a judge refuses to let out your client from a plea deal but it is worse when he then suggests that his lawyer is a plagiarist to boot. That however is what former National Security Adviser Michael Flynn and his counsel, Sidney Powell, faced in the 92 page order of U.S. District Court Judge Emmet Sullivan. Flynn has been trying to get out of his plea bargain in light of new information of improper conduct by the FBI in its Russia investigation as well as exculpatory information regarding his guilt. Many of us have criticized the prosecution of Flynn who pleaded guilty to a single false statement in interviews with the FBI. In addition, Flynn may not want to be sentenced by Sullivan whose last major hearing included false allegations against Flynn and dramatic condemnations. One can certainly understand Sullivan’s refusal to let Flynn get out of a plea that he willingly entered. However, the opinion contained an attack on his counsel that seemed gratuitous and unsupported.

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Columns, Congress, Criminal law, Lawyering, Media, Politics, Society

An Apology To Carter Page

Below is my column in The Hill newspaper on what the recent Horowitz report says about the treatment of former Trump adviser Carter Page. While the media has been quick to call developments as “vindication” for figures like Comey, it is largely silent on the poor treatment shown Page and the lack of evidence against him (and supporting the Russian investigation as a whole). Page has emerged as the Richard Jewell of the Russian investigation.

Here is the column:

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Congress, Media, Politics, Society

Sentence First! Verdict Afterwards”: Senators Signal Their Votes Before Actual Impeachment

I often remark that my Senate trial defending Judge Thomas Porteous has a jury that I would normally strike for cause en masse. An impeachment jury composed of politicians can be akin to a maritime inquiry with a jury composed of the Pirates of Penzance. This week, Senators in both parties seemed to signal their votes before an actual impeachment has occurred, let alone a trial,. Sen. Lindsey Graham (R., S.C.) declared “I’m not trying to pretend to be a fair juror here.” While the media focuses on Graham’s statement, Democratic senators have also made comments indicating that they have made up their minds. Indeed, yesterday, Sen. Chris Coons (D., Del.) declared that “if the Senate Republican majority refuses to discipline him through impeachment he will be unbounded.” It smacks of the Queen of Hearts in Alice in Wonderland: “Sentence first! Verdict afterwards.”

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Bizarre, Congress, Constitutional Law, Criminal law

Pelosi On Dropping The “Devastating” Bribery Article: “I Am Not A Lawyer”

I was pleased to see that the Judiciary Committee dropped previous claims of bribery, extortion, campaign finance and obstruction of justice as the basis for impeachment. I testified that the repeated assurances on these allegations from members, legal analysts, and my fellow witnesses were well outside the definitions for these crimes. The Committee ultimately went forward with the only two articles that I viewed as legitimate while rejecting my arguments to wait to build a sufficient record for submission to the Senate. I have received considerable criticism for my long opposition to the bribery theory as unsustainable as an impeachable offense. Thus, I was interested in hearing from the two members who were most adamant in their past declarations that bribery was established: Speaker Nancy Pelosi and House Intelligence Committee Chair Adam Schiff. Speaker Pelosi has now responded and her answer is far from satisfying. Frankly, calling the evidence of bribery “devastating” is a lot like calling the Ukrainian call “perfect.” It can be dismissed as hyperbolic but Pelosi was declaring the expected basis for the impeachment of an American president.

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Criminal law, International, Justice, Politics

Sudan’s Omar al-Bashir Sentenced to Prison. Will Extradition to The ICC Eventually Follow?
Omar Hassan Ahmad al-Bashir (ICC Photo)

By Darren Smith, Weekend Contributor

A Sudanese court sentenced former Sudan President and accused genocidist Omar al-Bashir to two years imprisonment following his recent conviction for corruption. Additionally, the Court ordered forfeiture of millions in Euros and Sudanese Pounds discovered at his residence after being deposed by a military coup. He faces the likelihood of additional charges levied against him in the near future.

From a foreign perspective, there still remains the unresolved matter of Mr. al-Bashir’s two arrest warrants issued by the International Criminal Court in The Hague stemming from accusations of genocide and other crimes against humanity.

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Academia, Bizarre, Congress, Constitutional Law

“The First Time In History”: Gerhardt Claims McConnell Is The First Senate Leader To Coordinate With White House On An Impeachment Trial

University of North Carolina Law Prof. Michael Gerhardt made a remarkable claim this week when asked about stories that Majority Leader Mitch McConnell (R, Ky.) was coordinating on the details of the Senate impeachment trial with the White House. Gerhardt claimed that such a thing has never happened in history. Despite my long association and friendship with Gerhardt, I must disagree with that remarkable suggestion.

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Congress, Constitutional Law, Politics

A Brief History Of Time: A Response To Chairman Schiff On The Need To Impeach By Christmas

The House Judiciary Committee is about to approve two articles of impeachment as member after member last night declared that time is of the essence. The House is now set to fulfill its pledge to impeach President Donald Trump by Christmas. For some us, the mad rush toward impeachment by the Democrats has been utterly incomprehensible.  It is difficult enough to go to the Senate in a presidential impeachment without an accepted crime and on the narrowest basis in history.  However, the Democrats know that they have combined those liabilities with the thinnest record of any modern impeachment – a record filled with gaps and conflicts.  The Democrats know that this record is guaranteed to fail and could easily justify the Senate holding a trial as cursory as its hearings.  Yet, they would prefer guaranteed failure rather than build a credible case for removal.  Why? The reasons put forward by House Intelligence Committee Chair Adam Schiff (D-Calif.) and others are not credible and, given the paucity of examination given these claims, it is worth closer scrutiny.

So, to use Stephen Hawkings’ famous construct, here is a brief history of time for impeachment.

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Columns, Congress, Constitutional Law, Society

The Art of Impeachment: Why I Still Just See A Banana Taped To A Wall
YouTube Screenshot

Below is my column in The Los Angeles Times on the decision of the House leadership to proceed with an impeachment of President Donald Trump on two articles of abuse of power and obstruction of Congress.

Art and impeachments are rarely an exercise of objectivity.  I testified that the impeachment alleged crimes like bribery, extortion, campaign finance violations, and other crimes (including those based on the Mueller investigation) are wildly outside standard definitions of those crimes.  Where the Committee obviously departed from my position was moving forward with this record. While I testified that Trump could be impeached for non-crimes like abuse of power, the record in this case is far too thin and incomplete to support submission to the Senate. Yet, how one sees this impeachment seems to depend on one’s perspective in the art of impeachment.

Here is the column:

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Media, Politics

Leaving Half The Country Behind: Poll Shows Majority Now Opposes Impeachment

During the testimony last week, I expressed various concerns with the artificially short period allowed for the impeachment investigation due to the Democratic pledge to impeach President Donald Trump by Christmas. Not only will that abbreviated period leave a thin and incomplete record, but it will leave “half of this country behind.” That appears to be exactly the right estimate. A new Monmouth poll shows that 50 percent of the country now opposes impeachment. The polling in some swing states is even worse. In other words, this impeachment is playing to the Democratic base and little beyond it — precisely what Speaker Nancy Pelosi pledged that she would not allow to happen.

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Congress, Constitutional Law, Courts, Media

Alan Morrison: Turley Is Right But Ultimately Wrong

I have the distinction of serving at George Washington Law School with many accomplished academics, including Professor Alan Morrison who is one of the most respected legal figures in the country with extensive litigation and public interest experience. Professor Morrison has written the column below where he disagrees with my ultimate position in the impeachment hearing and I am delighted to offer this opposing view as a guest columnist on our site.

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Columns, Criminal law, Justice, Lawyering

Titanic Failure: What The Horowitz Report Actually Says About The Russian Investigation

I previously discussed the bizarre narrative in the media that the main takeaway from the Horowitz report was the debunking of a conspiracy theory. Below is my column in the Hill newspaper on some of the actual findings of the Horowitz report. The report shows that there was not credible evidence to maintain the investigation and that the Steele Dossier was essential to securing the FISA investigation despite repeated media statements to the contrary.

Here is the column:

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