Columns, Congress, Constitutional Law, Lawyering, Media

Pelosi’s Blunder: How The House Destroyed Its Own Case For Impeachment

Below is my column in The Hill Newspaper on the blunder by Speaker Nancy Pelosi of not submitting the impeachment case to the Senate — a mistake that now threatens not just the trial but the rules for impeachment trials.

On Sunday, Pelosi went largely unchallenged in her obviously incorrect claim that the House is still in court seeking witnesses in the impeachment. The House is litigating pre-impeachment witnesses, but has never sought to subpoena, let alone compel, key witnesses in the impeachment from John Bolton to Rudy Giuliani to others with direct knowledge of any alleged quid pro quo. Indeed, the House has done nothing for four weeks after the vote – a vote that I strongly discouraged in favor of spending a couple months seeking these witnesses and/or court orders. Now Pelosi is actually suggesting that they could still seek the witnesses while the House does nothing. It remains the most baffling blunder of the impeachment.

Here is the column:

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Academia, Constitutional Law, Free Speech

Harvard Professor Lessig Sues New York Times For Defamation

This week seems to be a litigious one for Harvard professors. In addition to the complaint by Dershowitz at Yale, Harvard law professor and liberal political activist Lawrence Lessig is actually suing The New York Times for defamation. While there may be more offered in litigation, the lawsuit on its face seems dubious in establishing that the New York Times ran “false and defamatory” information for him as “clickbait” for readers.

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Academia, Free Speech, Society

Dershowitz Complains To Yale Over Professor’s Criticism Of His Claims Of A “Perfect Sex Life”

I have repeatedly objected to the dubious diagnosis offered freely by Yale psychiatrist Dr. Bandy Lee of President Trump, including recent statements that seemed to combine her political and professional views of the subject. As I discussed in a prior column on the demise of the Goldwater rule, these efforts to diagnose Trump from a distance raise highly disturbing ethical issues. Now Harvard Professor Alan Dershowitz has reportedly complained to Yale University after Lee suggested that he, and Trump supporters, display a “shared psychosis” with the president. Dershowitz triggered commentary when, in defense of allegations that he had sex with underaged girls during his association with child molester Jeffrey Epstein, he insisted that he had a “perfect sex life.” (Dershowitz is being sued by a woman who said she was forced by Epstein to have sex with him. It is one of a number of lawsuits currently pending against Dershowitz who has always maintained his innocence). As shown in dozens of prior columns, I oppose efforts to get academics punished or fired at their institutions out of concern for free speech and academic freedom. However, I agree with Dershowitz that Lee’s weaponizing psychiatric evaluations in this political debate is inimical to her school and her profession.

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Bizarre, Media, Politics

Trump Retweets Highly Offensive Images Of Pelosi and Schumer In Muslim Garb

President Donald Trump is being widely and legitimately denounced today for a highly offensive image that retweeted of Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer in Muslim garb, including a statement that Anti-Defamation League CEO Jonathan Greenblatt that the image is “repulsive anti-Muslim bigotry.” I have repeatedly objected to outrageous and unpresidential tweets by President Trump and I believe it is important for all of us to object to this type of offensive imagery and commentary. It has no place in our politics and certainly no place in presidential communications.

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Columns, Constitutional Law, Criminal law

Courting Disaster? The Democrats Are Demanding Witnesses With One Notable Exception

Below is my column in the Washington Post (slightly expanded) on the upcoming fight over witnesses, including the unresolved question of Hunter Biden. The problem facing Democrats is that Hunter Biden is a clearly material witness to the defense on why there was a hold on military aid to Ukraine. The plain fact is that, from the perspective of the defense, the worst Hunter looks, the better the hold looks.

Here is the column:

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

FISA Court Selects Lawyer Who Vehemently Denied FBI Misled FISA To Oversee FBI Reforms

The Foreign Intelligence Surveillance Court has triggered a wave of condemnations over the selection of David Kris, to oversee reforms of the FBI FISA process. Foreign Intelligence Surveillance Court (FISC) presiding Judge James Boasberg, left, appointed Kris, a lawyer that the Washington Post describes as “highly controversial.
Critics have objected that Kris writes for Lawfare, a legal site widely criticized by conservative lawyers for its left-oriented, anti-Trump positions, as well as shows like Rachel Maddow on MSNBC. That objection strikes me as attenuated and unfair. The more serious allegations however is that Kris was one of the most public advocates for rejecting allegations of FBI abuse. In a city where you can throw a stick and hit ten lawyers, FISC went to someone who insisted that allegations of abuse were nonsense and should be rejected. If the court was seeking to assure the public, it has added a new controversy for those who see a “deep state” response to reforms.

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Media, Politics

Polls Show Opposition To Trump’s Iran Actions

New polls have worrisome numbers for the Trump Administration. Despite Iran’s retaliation (thus far) being modest for the killed of a top military figure, some 56% of Americans say they disapprove of President Trump’s handling of matter with Iran, according to an ABC News poll conducted by Ipsos Public Affairs. The polls shows that the effort to portray Democrats as supporting a terrorist have not worked. Nor should they. It is entirely unfair to portray Speaker Nancy Pelosi as “trying to defend” Iranian military commander Qasem Soleimani. She denounced Soleimani but reasonably objected to the lack of conferral and evidence behind the attack. We can have a disagreement over such killings without suggesting that some are supporting terrorists by raising constitutional powers and obligations.

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International, Politics, Society

Iran’s Only Female Olympic Medalist Defects

In what could be an important moment for women’s rights in Iran, the country’s only female Olympic medalist reportedly defected to the Netherlands while denouncing Iran for its “hypocrisy” and making a veiled reference to being required to wear a covering in order to compete. We have long discussed the courageous women in countries like Saudi Arabia and Iran who have fought against crushing oppression and discrimination. The defection of Kimia Alizadeh, 21, will highlight that struggle and allow her to speak freely in the West. The defection comes at a time of protests over the false statements made by the Iranian government over the downing of a passenger jet.

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Academia, Society

Nerdgasm: Visiting The Woodrow Wilson Library Room

The Library of Congress has always been my favorite building in Washington (though the Capitol building is a very close second). After decades of working on the Hill, I still find amazing historic rooms tucked away in these buildings. This week, I spoke on impeachment at the Library of Congress next to the Woodrow Wilson library. I had to take a couple pictures to share. It is an amazing room with a breathtaking view of the Capitol dome.

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Bizarre, International, Media, Politics

Trump Complains About Being Stiffed By Nobel Committee In Baffling Statement Over Ethiopia

President Donald Trump has previously raised his unrecognized qualifications for the Nobel Peace prize. However, for those of us watching the rally last night in Ohio, one statement sent us furiously typing on our computers and googling the latest news from the Nobel committee. Trump referred to just hearing that the Ethiopian Prime minister would receive the prize and noted the unfairness since he was the one who made the deal. In fact, Ethiopian Prime Minister Abiy Ahmed won the prize last year in October and there is no evidence that Trump played a key role in his peace negotiations to end the war between Ethiopia and Eritrea.

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Bizarre, Criminal law, Torts

“Behold He Who Has Repented of His Sins”: Oregon Women Sues Mormon Church Over Reporting Husband’s Child Abuse

There is an interesting case out of Oregon where the wife of a convicted child sex offender is suing The Church of Jesus Christ of Latter-day Saints for contacting police after he confessed to sexually abusing the couple’s daughter. Timothy Samuel Johnson and his wife Kristine Johnson were members of a Stayton “ward” and his wife prompted his going to the church after learning that he had “engaged in inappropriate conduct” with a minor known to him.  Kristine Johnson is seeking $9.5 million for the breach of promised confidentiality by a clergy member. It is a fascinating twist on the usual challenge to evidence obtained by police in such clergy cases. Here the defendant is the church itself in a civil action for inducing the disclosure of incriminating information under allegedly false representations of confidentiality. The case could prompt churches and religious organizations to post warnings about their intention to go to police with any allegation of criminal conduct — a notice that could have an impact on the willingness of the faithful to be forthcoming in such confessional settings.

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Bizarre, Criminal law

Prison Officials Announce Video Of Epstein’s Cell Has Been Permanently Deleted In Due To “Technical Errors”

For those who remain suspicious about the timing of the suicide of disgraced financier and pedophile Jeffrey Epstein, news yesterday from the Metropolitan Correctional Center in New York legitimately magnified those concerns. In a breathtaking statement, the MCC announced that a “clerical error” led to the destruction of the surveillance footage taken from outside Jeffrey Epstein’s jail cell on the day that he first attempted suicide attempt. The tape was permanently deleted due to confusion with another tier. The levels of sheer incompetence, negligence, and stupidity required for such an act is almost beyond belief.

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Bizarre, Congress, Politics

Chairman Smith Speaks Out Against Pelosi Hold On Impeachment . . . Before Claiming He “Misspoke”

Various Democrats are beginning to state the obvious: the hold on the submission of the impeachment by House Speaker Nancy Pelosi has not worked and will not work. From the very start, some of us stated that this was a ridiculous ploy that would not result in any concessions. What it has done is eviscerate the rationale for the rushed impeachment. Various Senate Democrats have broken with Pelosi over the ill-conceived strategy. The most stinging was Sen. Diane Feinstein who stated “The longer it goes on the less urgent it becomes. So if it’s serious and urgent, send them over. If it isn’t, don’t send it over.”

In the House, there has been an effort to declare success by the fact that there is a debate over witnesses, but the same debate occurred during the Clinton trial when the House acted appropriately in submitting the impeachment. Now, ranking Democrat has learned that stating the obvious is blasphemy. House Armed Services Committee Chairman Adam Smith, D-Wash. declared that the hold had not worked and would not work. He said it was time to turn over the impeachment and not try to control another house. He was quickly given word that he was a blasphemer and declared that he had “misspoken” and then said the exact opposite. There is nothing more moving than a redemptive sinner.

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Academia, Bizarre, Congress, Constitutional Law, Courts

History and Its Revision: The Use and Misuse Of The Nixon Precedent

Professor Ken Hughes of University of Virginia recently penned a column to denounce the utter partisanship and lack of integrity in Washington as demonstrated by the failure of a single Republican to support the impeachment of President Donald Trump. He did not, of course, view the virtually unanimous vote by Democrats as partisan. Just the Republicans. The reason appears to be the view that the Democrats are right and therefore the Republicans are utter partisan hacks. To make his case, Professor Hughes makes equally selective observations about the history of impeachment, including singling out a line from my testimony before the House Judiciary Committee.

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Congress, Constitutional Law, Media, Politics, Society

“It’s UnAmerican. It’s Unconstitutional”: Utah Senator Denounces The Iran Briefing As “Absolutely Insane”

An interesting thing occurred on Capitol Hill yesterday. A U.S. Senator demanded to be treated as an actual U.S. Senator. After the briefing by the Trump Administration on the “imminent” threat behind the killing of Iranian general Qasem Soleimanim, Utah Republican Sen. Mike Lee came out of the hearing irate at what he described as the “worst military briefing” he had ever witnessed. Lee is one of President Donald Trump’s most committed supporters and a hawk. However, he has a quaint notion of being part of an independent branch of government with independent obligations under federal law. Lee refused to simply rubber stamp the position of the White House and denounced the “briefing” as offering no real evidence and little beyond platitudes. Sen. Rand Paul joined Lee in criticizing the briefing as clearly insufficient. In response to this principled position, both have been accused of “empowering the enemy” by Sen. Lindsey Graham. Defending the authority and functions of Congress is precisely what the Framers demanded in our system of checks and balances.

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