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New Lawsuits Could Determine Not Only The Legal Status Of The Comey Memos But The Legality of Comey’s Actions

JONATHAN TURLEY

200px-Cnn.svg440px-Comey-FBI-PortraitLast week, CNN filed a lawsuit seeking the famous Comey memos from the FBI, which is discussed in the column below in The Hill newspaper.  The lawsuit could produce an official characterization of the status of the memos as either personal or FBI information.  After this column was posted, Judicial Watch also filed a lawsuit seeking the memos which it maintained were the property of the FBI.  The lawsuit states “Upon learning that records have been unlawfully removed from the FBI, you then are required to initiate action through the Attorney General for the recovery of records.”  These lawsuits could prove vindicating or implicating for Comey.

Here is the column:

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Did The Special Counsel’s Office Just Leak Against Trump?

JONATHAN TURLEY

440px-Director_Robert_S._Mueller-_III-1The Washington Post is reporting that Special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 election has now expanded to look into whether President Donald Trump attempted to obstruct justice.  What is most notable is not the investigation of obstruction of justice.  Rather it is the fact of the leak that is alarming.  Former FBI Director James Comey (who followed Mueller at the Bureau and has had a long relationship with Mueller) just admitted to leaking damaging information against Trump.  Comey, who was tasked with investigating leakers, became a leaker himself. Now, the Special Counsel’s office is accused by Trump’s counsel of leaking informing damaging to Trump — an office that could be asked to consider unauthorized leaks as part of its investigation.  While such leaks could come from witnesses, those witnesses appear in large part high-ranking members of the Trump administration.

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Mueller Hires Justice Official With History Of Arguing For Expansive Interpretation of Obstruction of Justice

JONATHAN TURLEY

440px-Director_Robert_S._Mueller-_III-1There was an interesting development late last week when Special Counsel Robert Mueller hired Michael Dreeben, a deputy in the Office of the Solicitor General, to work part-time with his staff.  The addition of Dreeben added someone with considerable criminal and appellate experience. However, Dreeben’s background also contains an interesting item that bears directly on the potential case against President Donald Trump.  Dreeben argued in an unsuccessful appeal of the prosecution of Arthur Anderson where the Justice Department advanced a sweeping interpretation of obstruction of justice — an interpretation that I criticized as wildly overbroad.  The interpretation resulted in a unanimous rejection of the Supreme Court.  Given the call for a charge of obstruction against Trump (and the view of some of us that there remains considerable statutory barriers to such a charge), Dreeben’s addition should be a concern to the Trump defense team.

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Did Comey Violate Laws In Leaking The Trump Memo?

JONATHAN TURLEY

440px-Comey-FBI-PortraitOne of the most interesting new disclosures today in the Comey hearing was the admission by former FBI Director James Comey that he intentionally used a “friend” on the Columbia law faculty to leak his memos to the media.  Comey says that he did so to force the appointment of a Special Counsel. However, those memos could be viewed as a government record and potential evidence in a criminal investigation.

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The Russian Disclosure: Trump’s Game of Truth or Dare

JONATHAN TURLEY

donald_trump_president-elect_portrait_croppedBelow is my column in USA Today on President Donald Trump’s disclosure of highly classified information to the Russians in his controversial meeting after the firing of James Comey.  While the Administration issued a series of categorical denials of the underlying stories as “false,” the next day it appeared to acknowledge that Trump did in fact reveal the information.  As discussed below, it was a wise decision not to repeat the initially misleading statements to Congress.  The intelligence was reportedly generated by Israel, which did not give permission to the President to make the disclosure to the Russians.  Since the New York Times and Washington Post did not say that Trump released “sources and methods,” it now appears that the White House is not claiming that the stories were false.  It is the latest example of denials from the White House which then lead to embarrassing reversals over the…

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The Ginsburg Gamble and the Future of the Supreme Court

JONATHAN TURLEY

225px-ruth_bader_ginsburg_scotus_photo_portrait500px-The_CardsharpsBelow is my column on the unfolding future of the Supreme Court after the confirmation of Justice Neil Gorsuch and the elimination of filibusters in the selection of Supreme Court nominees.  For years, commentators have been discussing the timing of the retirement of our older justices, including Justice Ginsburg.  There was rising concern when Ginsburg decided to stay on the Court past the midterm mark of the second Obama term.  Those concerns have now been magnified and realized with the Trump election and filibuster elimination.  Of course, the same concerns are raised by the possible retirement of Justice Anthony Kennedy, the swing vote on the current Court.  New rumors have arisen  this week about Kennedy. However, of all of the older justices, it is replacement of Ginsburg that could produce the most profound changes for the country.

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Hold On, Yes, You, We’re Not Done Yet: More Legal Challenges Coming Against Obamacare

Barack Obama

Ben Shapiro has a good roundup of what’s in the Obamacare legal dispute pipeline:

With the Obama administration’s defeat in Burwell v. Hobby Lobby, all eyes now turn to further Obamacare challenges. Chief Justice John Roberts shockingly greenlit Obamacare itself by converting it into a tax from a stated penalty, but he has also shown a partial willingness to chip away at the law.

There are two more upcoming cases on Obamacare worth watching. We can only hope that such lawsuits are just the beginning when it comes to the implementation of a law with regulations stacking up to eight feet tall.

Halbig v. Burwell: This case seemingly turns on a technicality, but it could completely sink the workability of Obamacare itself. The law allows for federal subsidies for those who buy their care through state exchanges; if subsidies are unavailable, those people can claim exemption from Obamacare penalties for hardship reasons.

There is one major problem for the Obama administration: 34 states refused to start state healthcare exchanges, and the law makes no provision for subsidies for those who buy their coverage through the federal exchange. That means that millions of people who applied for coverage through the federal exchange could be left without subsidies, freeing them of Obamacare penalties and destroying the base upon which Obamacare is based. Read the rest of this entry »


The President’s Power Grab

Critics have warned that the president's promise to act in the face of congressional gridlock might amount to executive overreach. (Alex Wong / Getty Images)

The president’s executive overreach erodes constitutional checks and balances (Alex Wong / Getty Images)

Bambi is not a dictator, but there is a danger in his aggregation of executive power

Another Op-Ed warning about Executive overreach in the Obama era is not unique. What is unique, is that it’s in the LA Times. Does Obama want to be a ruler, instead of a president?  Interestingly, the LA Times included this link in the body of the article: Photos: A peek inside 5 doomed dictators’ opulent lifestyles. Think Obama’s personal luxury is overstated? Kings and Queens are required to manage their affairs more modestly than modern U.S. presidents. As Mark Steyn likes to point out, the operational cost of the White House exceeds operating cost of all the remaining Monarchies on earth, combined.

Jonathan Turley writes:

Recently, a bizarre scene unfolded on the floor of the House of Representatives that would have shocked the framers of the Constitution. In his State of the Union address, President Obama announced that he had decided to go it alone in areas where Congress refused to act to his satisfaction. In a system of shared powers, one would expect an outcry or at least stony silence when a president promised to circumvent the legislative branch. Instead, many senators and representatives erupted in rapturous applause; they seemed delighted at the notion of a president assuming unprecedented and unchecked powers at their expense.

“The United States is at a constitutional tipping point: The rise of an uber presidency unchecked by the other two branches.”

Last week, Obama underlined what this means for our system: The administration unilaterally increased the transition time for individuals to obtain the level of insurance mandated by the Affordable Care Act. There is no statutory authority for the change — simply the raw assertion of executive power.

Our system is changing in a fundamental way without even a whimper of regret. No one branch in the Madisonian system can go it alone — not Congress, not the courts, and not the president.

This massive shift of authority threatens the stability and functionality of our tripartite system of checks and balances. To be sure, it did not begin with the Obama administration. The trend has existed for decades, and President George W. Bush showed equal contempt for the separation of powers. However, it has accelerated at an alarming rate under Obama. Of perhaps greater concern is the fact that the other two branches appear passive, if not inert, in the face of expanding executive power. Read the rest of this entry »


[VIDEO] Jonathan Turley’s Warning: ‘We’re at a Constitutional Tipping Point‘

Selective enforcement, executive overreach, IRS hearings, the White House shutting out the press, prying Clinton, Gates, And Mullen Testify Before Senate Foreign Relations Cmteopen sealed records… this week marks a period of exposure and scrutiny. Hillary’s historic document dump comes later today. From WSJ blogs:

Thousands of pages of records from the Clinton presidency will be made public Friday, potentially offering fresh insights into Hillary Clinton as she considers whether to run for president in 2016…

…The papers are part of a cache of 33,000 pages of Clinton presidential records that had been withheld from various public records requests because they were exempt from disclosure under the law governing presidential records….

JonathanTurleyCSPAN-1-290x230And for the last few days Jonathan Turley has been appearing on news programs, delivering a warning about executive overreach–not just under Obama, in the last two administrations–disrupting the balance of power, with less opposition or pushback from courts, and other branches of government, than the founders would have imagined. It raises a good question. Why aren’t the other branches guarding their power more vigorously, as the framers intended?

One possible answer Turley doesn’t mention (but critics like Ted Cruz, and author Mark Leibovich do) it’s obama-exec-onot the branches of governments’ dysfunctional relationship with each other, or even the heightened political warfare between opposing parties that should concern us, it’s the larger consolidation of power, shared comfortably among the members of an emerging permanent ruling class.

It’s “insiders vs. outsiders”, as Mark Leibovich notes in his book This Town“. Contrary to the prevailing view, the social climate in Washington D.C., isn’t as ‘toxic’, or ‘poisonous’ as the media narrative often portrays, it’s actually quite cozy.  For a decaying constitutional republic, this should be alarming. 

At Hot Air, ALLAHPUNDIT notes:

…Turley’s real problem isn’t with O’s behavior, which is rational and in line with our cynical expectations for state actors clothed in authority. His problem is with the other branches, especially the courts, for refusing to provide the checking and balancing they’re supposed to.

“My view [is] that the president, has in fact, exceeded his authority in a way that is creating a destabilizing influence in a three branch system,” he said. “I want to emphasize, of course, this problem didn’t begin with President Obama, I was critical of his predecessor President Bush as well, but the rate at which executive power has been concentrated in our system is accelerating. And frankly, I am very alarmed by the implications of that aggregation of power.”

“What also alarms me, however, is that the two other branches appear not just simply passive, but inert in the face of this concentration of authority,” Turley said…

“The fact that I happen to think the president is right on many of these policies does not alter the fact that I believe the means he is doing [it] is wrong, and that this can be a dangerous change in our system,” he said. “And our system is changing in a very fundamental way. And it’s changing without a whimper of regret or opposition.”

The other key takeaway here…is that congressional gridlock is neither new nor an excuse for the president to unilaterally suspend laws that are politically inconvenient to him

[Leibovich’s book This Town: is available at Amazon]

For the Washington Free Beacon    writes:

Members of Congress and constitutional law experts testified before the House Judiciary Committee on Wednesday, warning that the legislative branch is in danger of ceding its power in the face of an “imperial presidency.”

The hearing, “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws,” focused on the multiple areas President Barack Obama has bypassed Congress, ranging from healthcare and immigration to marriage and welfare rules.

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NY Times: Obamacare Extensions ‘A Sweeping Exercise of Executive Power’

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Wynton Hall writes:  On Christmas Eve, the Obama administration announced yet another Obamacare enrollment extension on its HealthCare.gov blog for anyone who claims to have missed the myriad sign-up deadlines due to problems with the website.

The New York Times called the announcement “vague” and noted that “it was not clear on Tuesday how many people would be affected, or how consumers would prove that website errors had prevented them from signing up by the deadline on Tuesday night.”

The Obama administration announcement also failed to note when the “special enrollment period” would cease; however, White House spokesperson Tara McGuinness assured Americans it is not offering a “blanket extension” but will consider “assistance to individuals on a case-by-case basis.”

Insurance industry experts say the White House’s endless rounds of delays and shifting deadlines create more confusion and uncertainty in an already murky market.

“The goal posts keep moving,” insurance lawyer William G. Schiffbauer told theTimes. “That raises questions about whether insurers can collect premiums in a timely manner to pay claims from doctors and hospitals.”

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BIG LOVE: Federal Judge Declares Utah Polygamy Law Unconstitutional

Joe Pugliese | Courtesy TLC Kody Brown, right, with "sister wives" Christine, left, Meri, Robyn and Janelle. The Brown family says Utah's bigamy statute is unconstitutional and is suing the state.

Joe Pugliese | TLC    Kody Brown, right, with “sister wives” Christine, left, Meri, Robyn and Janelle. The Brown family says Utah’s bigamy statute is unconstitutional and is suing the state.

District court ruling finds key parts of Utah polygamy laws unconstitutional

Jim Dalrymple writes:  Judge Clark Waddoups’ 91-page ruling, issued Friday, sets a new legal precedent in Utah, effectively decriminalizing polygamy. It is the latest development in a lawsuit filed by the family of Kody Brown, who became famous while starring in cable TV channel TLC’s reality series “Sister Wives.” The show entered a fourth season at the end of the summer.

Statement from Kody Brown:

The entire Brown family is humbled and grateful for this historical ruling from the court today. Like thousands of other plural families, we have waited many years for this day. While we know that many people do not approve of plural families, it is our family and based on our beliefs. Just as we respect the personal and religious choices of other families, we hope that in time all of our neighbors and fellow citizens will come to respect our own choices as part of this wonderful country of different faiths and beliefs. There are so many families who have waited for so long for this ruling and, on their behalf, we can only say: thank you, Judge Waddoups, for your courageous decision. We want to particularly thank our lead counsel Professor Jonathan Turley who represented us through the criminal investigation and then led the fight against this law. We also want to thank the team of lawyers and students from George Washington, including our local counsel Adam Alba. We are so honored and blessed to have been able to serve as the vehicle for this milestone ruling. Professor Turley has pledged to defend this decision on appeal and we are equally committed to fight to preserve this great victory.

Waddoups’ ruling attacks the parts of Utah’s law making cohabitation illegal. In the introduction, Waddoups says the phrase “or cohabits with another person” is a violation of both the First and 14th amendments. Waddoups later writes that while there is no “fundamental right” to practice polygamy, the issue really comes down to “religious cohabitation.” In the 1800s — when the mainstream LDS Churh still practiced polygamy — “religious cohabitation” in Utah could have actually resulted in “multiple purportedly legal marriages.” Today, however, simply living together doesn’t amount to being “married,” Waddoups writes.

“The court finds the cohabitation prong of the Statute unconstitutional on numerous grounds and strikes it,” Waddoups later writes.

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