We recently discussed the release of photos of suspects by the FBI of individuals connected to the attack on the statue of Andrew Jackson outside of the White House. One of those arrested is Jason Charter who is described as the “ringleader.” He is also a George Washington University student and a professed supporter of Antifa. Charter is likely to be a priority prosecution for the Administration. However, his criminal case could raise some challenging issues on admissibility of evidence of his affiliations and political views.
In a surprising move, Ghislaine Maxwell, the British heiress and confidante to the late financier Jeffrey Epstein, has been arrested in New Hampshire. Maxwell’s arrest could have a ripple effect on both criminal and civil matters ranging from the still uncertain status of Prince Andrew to a number of defamation lawsuits. One of Maxwell’s principal accuser was Virginia Roberts Giuffre who has filed lawsuits against Maxwell as well as figures like Harvard Professor Alan Dershowitz. It appears that the charges derive from the U.S. Attorney for the Southern District of New York, another indication that the recent controversy of the replacement of the U.S. Attorney has not impacted underlying investigations.
We have been discussing the growing fear of professors and students over the loss of free speech on campuses for years, but recently those concerns have been greatly magnified with the investigation or termination of professors for expressing opposing views about police abuse, Black Lives Matter movement or aspects of the protests following the killing of George Floyd. There is a sense of a new orthodoxy that does not allow for dissenting voices as campaigns are launched to fire faculty who are denounced as insensitive or even racist for such criticism. The most recent controversy involves the recently installed University of Massachusetts-Lowell Dean of Nursing Leslie Neal-Boylan. Dr. Neal-Boylan had only been in her position for a few months when she was fired. The reason, according to many reports, is that she sent an email on June 2 to the Solomont School of Nursing on the recent anti-racism demonstrations across the country that include the words “everyone’s life matters.” As a blog dedicated to free speech, it has been difficult to keep up with the rising number of cases of the curtailment of speech or academic freedom on our campuses. What is equally alarming is the relative silence of most faculty members as individual professors are publicly denounced by their universities, forced into retirement, or outright terminated for expressing dissenting views. This case however raises an equally serious concern over the loss of due process for academics who find themselves the focus of a campaign for removal — or simply summary dismissal.
I reached out to the University and updated the column with the response, which does not clarify most of these questions but suggests that the Dean may have been terminated for other reasons. I have also reached out to Dr. Neal-Boylan for a response on both the cause and merits for her termination.
In Washington, U.S. District Judge Timothy J. Kelly has ruled against the Trump Administration in its important “third-country asylum rule” — prohibiting undocumented immigrants from claiming asylum in the United States if they did not first try to claim it in a country they passed through on their way to the U.S. border. The ruling is yet another example of how basic failures to follow procedure or submit supporting evidence has hampered the rollout of major policy initiatives. Kelly was not questioning the underlying deference to the Administration or the ultimate merits. Rather as in the recent loss before the Supreme Court under DACA (or the Deferred Action for Childhood Arrivals program), the court found that the government had failed to satisfy the minimal requirements of the Administrative Procedure Act, or APA. Since the start of the Administration, there has been a lack of attention to detail and basic procedure that has resulted in a series of technical violations. It has incurred losses that were not only avoidable but easily avoidable with adherence to the governing case law on the APA.
In a Fox interview last night, the stepmother of ex-Atlanta police officer Garrett Rolfe raised what clearly sounds like a claim of defamation against her former employer Equity Prime Mortgage in Atlanta. Melissa Rolfe says that she was fired after her step son was charged with the murder of Rayshard Brooks. Her firing has been in the news, but the legal standing of Rolfe seemed questionable to challenge the termination. She appears to be an “at will” employee who can ordinarily be fired, as it is often said, for “good reason, bad reason, or no reason at all” (absent the violation of a statutory or constitutional protection). However, it appears that she may be contemplating a lawsuit based not on the termination by Equity Prime Mortgage but how the company explained the termination after it was criticized for allegedly firing Rolfe simply because of her son. That could present an interesting defamation action and a cautionary tale for companies in dealing with such high-profile matters.
We have been discussing the wanton destruction of public memorial and statues across the country, including baffling attacks on abolitionists and those who fought against slavery. One of the most incongruous targets has been Abraham Lincoln in various cities. Now, students at the University of Wisconsin, including the Black Student Union and the Student Inclusion Coalition, have demanded the removal of Lincoln’s statue as ‘a single-handed symbol of white supremacy.” The signer of the Emancipation Proclamation, the vocal advocate for the 13th Amendment, and the man assassinated for his war against the South and slavery. Saying that Lincoln is the “symbol of white supremacy” has about as much foundation as saying Harvey Milk is the symbol of militant heterosexuality. Both were great leaders who were killed at the height of campaigns for equality. As I discuss below, there are aspects of Lincoln’s legacy that are worthy of condemnation but even John Wilkes Booth would dispute the claim of Lincoln as the embodiment of white supremacy.
Back in March, I wrote that Chief Justice John Roberts appeared to be on course for a collision with himself over abortion. Yesterday, he collided in a spectacular way. Due to my testimony in Congress on the Lafayette Park case, I was unable to share the opinion. Continue reading “Roberts Collides With Himself On Abortion”
Two lawyers in St. Louis are in the middle of a firestorm after they were shown outside of their house with guns in a confrontation with protesters en route to the nearby house of Mayor Lyda Krewson. Mark and Patricia McCloskey are shown aiming their weapons at the protestors, including Mark McCloskey’s assault-style rifle. St. Louis Circuit Attorney Kim Gardner has publicly declared that she is looking for criminal charges to bring against the two lawyers. That has led to many in the criminal defense field (including many who reached out to me) to speculate on what charges she might bring under these facts. While many have suggested that this would be a slam dunk prosecution or that the fact easily satisfy criminal definitions, it may be easier to get a charge than a sustainable conviction.
This afternoon, I am testifying on the hearing on the controversy surrounding the clearing of Lafayette Park on June 1, 2020. I was called to appear to address the underlying legal and constitutional standards governing such mass demonstrations. For roughly 14 years, I was one of the lead counsels in the World Bank litigation that helped establish guidelines and case law governing such operations. I have been critical of the force used to clear the park as well as the attack on a team of Australian journalists covered the protests.
The operation to clear the Park began two days before with the plan to install fencing. By Monday, a small barrier was in place around the park itself and the clearing operation was to push back the crowd to a perimeter to allow the higher fencing to be installed beyond the range of debris or objects. The crowd was pushed back to I St. from H St. by the line of officers. (The hearing title and the testimony refers to the “Lafayette Park” or “Lafayette Square Park” generally. In fact, the immediate park was closed off and we are discussing the operation to clear the area for the installation of the higher fence).
As I state in the testimony, I believe the order to clear the area would be found lawful. It is the level of force (and a charging of the line of officers) that is likely to be the focus of any court. I still do not see the need for this level of force in the use of batons and pepper spray.
I have attached my testimony below.
The hearing went until after 2 pm.
Below is my column in The Hill newspaper that looks at three different stories attacking Attorney General Bill Barr as acting unethically and corruptly from the Flynn case to the Berman decision to the Cohen case. I have not hesitated to criticize Barr on his policies or actions. However, these are based on long-standing differences over constitutional and legal issues. It is the character attacks that I found notable in last week’s stories particularly in the absence of supporting evidence.
Here is the column:
Below is my column in USA Today on the D.C. Circuit ordering Judge Emmet Sullivan to dismiss the case of former National Security Adviser Michael Flynn. After this column ran, new evidence emerged that further undermined the FBI and the targeting of Flynn, as discussed in another recent column. Notes from fired FBI Special Agent Peter Strzok show that former FBI Director James Comey told President Barack Obama and Vice President Joe Biden that Flynn’s call to the Russian diplomat “appear legit.” Nevertheless, Biden (who denied having anything to do with the case) is noted as raising the idea of a charge under the facially unconstitutional Logan Act, a law that has never been used successfully to charge a single person since the beginning of this Republic. Comey of course was the one who later bragged that he “probably wouldn’t have … gotten away with it” in other administrations, but he sent “a couple guys over” to question Flynn, who was settling into his new office as national security adviser. We now know that, when Comey broke protocols and sent the agents, he thought the calls were legitimate and that agents wanted to dismiss the investigation in December for lack of evidence. They were prevented from doing so as Strzok, Biden, and others discussed other crimes, any crime, to nail Flynn just before the start of the Trump Administration.
If all of that seems “illegitimate” and “irregular,” it pales in comparison to how two judges on the D.C. panel viewed the handling of the Flynn case by Judge Emmet Sullivan. It seems that everyone from the President to the Vice President to the FBI Director to ultimately the federal judge have engaged in a dangerous form of improvisational law when it came to Michael Flynn. That will now hopefully end though many questions still remain.
It is possible for Judge Sullivan to appeal, though the upcoming hearing on Flynn has been removed from the docket.
We have been discussing the destruction and defacing of public monuments, including the iconic bust of George Washington at the center or our own campus at George Washington University. President Donald Trump has issued an executive order imposing up to ten years imprisonment for those responsible for such destruction. In reality, he has no unilateral authority to impose such criminal penalties, but existing federal laws do allow for prosecution. There now appears to be a comprehensive effort underway with the FBI releasing images of 15 suspects who authorities believe vandalized a statue of Andrew Jackson recently near the White House. However, the poster contains an interesting reference.
George Washington University President Thomas LeBlanc surprised many faculty members yesterday with a public declaration of the university for making the 51st state. There is considerable support for statehood at the university but there is no indication that the faculty voted on such a declaration and there is no indication that even the Board as a whole voted on the matter. Some of us have long maintained that, regardless of the merits of a political measure, the university should avoid speaking for the entire institution out of respect to myriad of different voices and views represented in our community. This could well be a question upon which we should abandon our traditional neutrality as an institution and speak as one voice. As one of the oldest institutions in the city, the university may have legitimately wanted to be heard on the question. Yet, even when the school chooses to do so, faculty governance values warrant that the faculty should be given an opportunity to be heard. The staff and students also deserve to be heard as part of this process. This specific legislation has been pending for months and we could have presented the matter to the faculty, staff, and students for their input. If we did, I am not aware of it and the university did not suggest that such a vote was ever taken by the community. I have asked other faculty who were also unaware of any vote by the faculty, students or staff. The university itself could not cite any prior vote after an inquiry. The result is not necessarily different but the process is important. I would feel the same way (indeed more so) if the University announced opposition to D.C. statehood without faculty, staff, and student participation.
Below is my column in The Hill on the ongoing destruction of memorials and statues. After this column ran, I learned that one of the iconic busts of George Washington University had been toppled on my own campus. I did not learn that from our university, which was conspicuously silent about this destructive act at the very center of our campus. There is something eerily familiar in the scenes of bonfires with police watching passively as public art is destroyed. Such acts are akin to book burning as mobs unilaterally destroyed images that they do not want others to see. There are valid issues to address on the removal of some public art but there is no room or time for debate in the midst of this spreading destruction. Even when there is merit to objections to literally or artistic or historical works, mob action threatens more than the individual work destroyed by such action. The media has largely downplayed this violence, including little comparative coverage of an attack on the Democratic state senator who simply tried to videotape the destruction of a statue to a man who actually gave his life fighting against slavery in the Civil War. As discussed earlier, history has shown that yielding to such mob rule will do little to satiate the demand for unilateral and at times violent action. People of good faith must step forward to demand a return to the rule of law and civility in our ongoing discourse over racism and reform.
Here is the column: