What Did You Say?

Tagged with:

The Reveal: The Public is Finally Learning How Democrats Pulled Off the Greatest Political Trick in History

By: Jonathan Turley | August 1, 2025

Below is my column in Fox.com on the release of the last declassified material on the origins of the Russian collusion investigation. After the release, former CIA Director John Brennan and former Director of National Intelligence James Clapper wrote in the New York Times insisted that they never relied on the Steele dossier. The column only reaffirmed the level of dishonesty and duplicity that marked their tenures in office. (The Times still printed this claim despite being demonstrably untrue).

The documents quote Brennan in overruling career analysts and intervening to include the dossier in the intelligence assessment. Moreover, the column echoes the media spin that the investigation was about an attempted Russian interference while dismissing the collusion claim that consumed much of the first term. (Even after leaving office, Brennan continued to push the false collusion claim). Both countries routinely hacked each other’s emails — that is why we have the most recent incriminating evidence on the Clinton campaign’s funding and spreading the false collusion claims. We hacked their emails. We have also regularly tried to influence the elections of other nations. The key to the dossier and the Russian investigation was the allegation of collusion and the central role of the Clinton campaign in creating the narrative that Trump was a Russian asset.

Here is the column:

This week, Washington was rocked by new releases in the declassification of material related to the origins of the Russian investigation. The material shows further evidence of a secret plan by the Clinton campaign to use the FBI and media to spread a false claim that Donald Trump was a Russian asset. With this material, the public is finally seeing how officials and reporters set into motion what may be the greatest hoax ever perpetrated in American politics. There never was a Russian collusion conspiracy. This is the emerging story of the real Russian conspiracy to manufacture a false narrative that succeeded in devouring much of the first term of the Trump Administration.

What is emerging in these documents is a political illusion carefully constructed by government officials and a willing media. The brilliance of the trick was getting reporters to buy into the illusion; to own it like members of an audience called to the stage by an illusionist.

The effort closely followed the three steps of the classic magic trick: The Pledge, The Turn, and The Prestige.

The Pledge

The trick began with the pledge, the stage where the public is set up by showing ordinary events with the suggestion that it is about to transform into something extraordinary. The key is to make something seem real that is actually not.

The Clinton campaign delivered the pledge by secretly funding the Steele dossier, using Fusion GPS and a former British spy named Christopher Steele, to create a salacious account of Trump being an agent of Russia. New emails state that Hillary Clinton personally approved the operation.

It was Elias who was the general counsel to the Clinton presidential campaign when it funded the infamous Steele dossier and pushed the false Alfa Bank conspiracy. (His fellow Perkins Coie partner, Michael Sussmann, was indicted but acquitted in a criminal trial.)

During the campaign, a few reporters asked about the possible connection to the campaign, but Clinton campaign officials denied any involvement in the Steele Dossier. After the election, journalists discovered that the payments for the Steele dossier were hidden as “legal fees” among the $5.6 million paid to Perkins Coie under Elias.

When New York Times reporter Ken Vogel tried to report the story, he said, Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”

Later, John Podesta, Clinton’s campaign chairman, appeared before Congress for questioning on the Steele dossier. Podesta emphatically denied any contractual agreement with Fusion GPS. Sitting beside him was Elias, who reportedly said nothing to correct the misleading information given to Congress.

The FEC ultimately sanctioned the Clinton campaign and the Democratic National Committee over the handling of the funding of the dossier through his prior firm.

The Turn

The next step is the turning point when the ordinary becomes something extraordinary. This required the involvement of the government. The Clinton team worked behind the scenes to feed the dossier to the FBI. It would be the criminal investigation that would transform the ordinary accounts, like Carter Page speaking in Moscow, into an elaborate Russian plot. Even though the FBI was warned early on that Page was a CIA asset, not a Russian asset, the Clinton team found eager officials in the Obama Administration to assist in the illusion.

The newly disclosed evidence shows how the turn was made. In July 2016, Brennan briefed former President Obama on Hillary Clinton’s “plan” to tie then-candidate Trump to Russia as “a means of distracting the public from her use of a private email server.” The original Russia investigation — funded by Clinton’s campaign — was launched days after this briefing.

Months later, it would be Brennan who overruled his own CIA analysts in his ordering of a second last-minute assessment at the end of the Obama Administration in support of the Russian allegations. It would help make the turn with the all-consuming Russian investigation that would follow.

Career analysts were not buying the turn. They objected that the reliance on the Steele dossier “ran counter to fundamental tradecraft principles and ultimately undermined the credibility of a key judgment.” One CIA analyst told investigators that “[Brennan] refused to remove it, and when confronted with the dossier’s main flaws, [Brennan] responded, ‘Yes, but doesn’t it ring true?’”

That is the key to the turn; it needs only to be enough to fool the audience.

The Prestige

The final stage is called the Prestige, where the magician faces the toughest part of the trick. As explained in the 2006 movie “The Prestige,” the viewer is “looking for the secret… but you won’t find it, because of course you’re not really looking. You don’t really want to know. You want to be fooled.” However, “making something disappear isn’t enough; you have to bring it back.”

The difference is that this trick was designed to derail Trump and it worked. In the end, however, the Special Counsel and Inspector General both rejected the Russian collusion claims. The public then reelected Trump. Now, the prestige may be revealed by the CIA.

Reports indicate that the CIA is about to declassify material showing that foreign sources were also in on the trick. The information reportedly indicates that foreign sources were aware of the move to create a Russian collusion scandal and expected that the FBI would play a role in the plan. That was before the bureau launched its controversial Crossfire Hurricane probe. One source said the foreign intelligence predicted the move “with alarming specificity.”

The most recently declassified material shows that the Russian actors in 2016 hacked emails from the Open Society Foundations, formerly known as the Soros Foundation. The emails reveal a broader network of activists and allies who were aware of the Clinton conspiracy.

Leonard Bernardo, who was the regional director for Eurasia at the Open Society Foundations, explained that “during the first stage of the campaign, due to lack of direct evidence, it was decided to disseminate the necessary information through the FBI-affiliated…from where the information would then be disseminated through leading U.S. publications.”

Bernardo added, “Julie (Clinton Campaign Advisor) says it will be a long-term affair to demonize Putin and Trump. Now it is good for a post-convention bounce. Later, the FBI will put more oil into the fire.”

The media (including the Washington Post and New York Times, which won Pulitzer prizes for reporting on the debunked claims) are apoplectic in dismissing these disclosures. The last thing they will do is report on how they helped sell a political hoax. The problem is that they never said it was a trick. They said it was the truth. That is why they cannot honestly cover the story. To do so would not be coverage, it would be a confession.

It appears that everyone was in on the trick: the U.S. government, the media, even foreign governments. The only chumps were the American people. Now they are about to see how it was done.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Tagged with:

Silence of the Lambs: The Media Ignores Declassified Documents on the Manufacturing of the Russian Conspiracy

By: Jonathan Turley | July 22, 2025

Consider this story: An outgoing president and his top officials are told that there is no evidence of Russian collusion or influence in the national election. The White House then moved to suppress the intelligence assessment and reverse the conclusions, while false claims were leaked to the press.

That is not just a major but a Pulitzer-level story, right?

Apparently not. The legacy media has largely ignored the declassified evidence and possible criminal referral on the Obama administration seeding the Russian collusion narrative just before the first Trump Administration. It supports allegations in the real Russian conspiracy: the conspiracy to create a false Russian collusion scandal to undermine the election and administration of Donald Trump in 2016.

Director of National Intelligence Tulsi Gabbard suggested last week that intelligence was “manufactured and politicized” despite countervailing conclusions from American intelligence that there was no collusion or influence on the election. Critics have noted that CBS only covered the story to refute it.

The release of this information is historically significant, as it finally allows the public to see how this effort began with the Clinton campaign and was then actively cultivated by Obama officials. We previously learned that the Clinton campaign spent millions to create the infamous Steele dossier and then hid their role from the public.

Attorney Marc Elias, the general counsel to the Clinton presidential campaign, pushed the false Alfa Bank conspiracy. (His fellow Perkins Coie partner, Michael Sussmann, was indicted but acquitted in a criminal trial.) During the campaign, reporters asked about the possible connection to the campaign, but Clinton campaign officials denied any involvement in the Steele Dossier. When journalists discovered after the election that the Clinton campaign hid payments for the Steele dossier as “legal fees” among the $5.6 million paid to Perkins Coie, they met with nothing but shrugs from the Clinton staff.

New York Times reporter Ken Vogel said at the time that Elias denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said, Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”

Elias was back when John Podesta, Clinton’s campaign chairman, was questioned by Congress on the Steele dossier and denied categorically any contractual agreement with Fusion GPS. Sitting beside him was Elias, who reportedly said nothing to correct the misleading information given to Congress.

Not only did Clinton reportedly spent over $10 million on the report, but Obama was briefed that she was going to create a Russian collusion narrative as part of her campaign. Aware of that Clinton effort, these new documents suggest that Obama and his aides actively sought to affirm the allegations just before Trump’s inauguration. The FBI then ramped up its own efforts despite also being told that the Steele dossier was unreliable and contradicted.

I disagree with the use of the charge of treason being thrown around with this release. Based on this evidence, it would be hard to make a criminal case against Obama, let alone the specific charge of treason. However, there are good-faith allegations raised about prior congressional testimony of key players in the Obama Administration. There may be viable criminal allegations ranging from perjury to obstruction to making false statements to federal investigators.

It is too early to gauge the basis for possible criminal charges. However, the release of this new evidence is both historically and legally significant. There is now a legitimate concern over a conspiracy to create this false narrative to undermine the incoming Administration. It proved successful in derailing the first Trump Administration. By the time the allegations were debunked, much of the first term had been exhausted. That is worthy of investigation and the public has a right to expect transparency on these long-withheld documents.

The silence of the legacy media is hardly surprising, given the key role the media played in spreading these false claims. Most media outlets find themselves in an uncomfortable position, having fostered an alleged conspiracy for years. Most reporters are not keen on making a case against themselves in spreading of these false claims.

Category:

Tagged with:

AI Generated Police Reports: A Tool for Law Enforcement or a Potential Concern?

By Darren Smith, Weekend Contributor to jonathanturley.org | July 15, 2025

The expanding adoption of Generative Artificial Intelligence (GenAI) is finding utility in nearly all areas of human thought and expression. Its speed, increasing sophistication and accuracy promises not only unique ideas but shows ability in automating ordinary processes which hopefully afford people savings in time and resources, enabling them to focus on the bigger picture and more important duties. There are however some worrying trends that can come up on the reliance of such technology in areas it is not yet suited. This article will focus on one area: police and criminal justice reporting.

A common complaint expressed in the law enforcement world and for that matter many other professions, is that an officer spends more time on paperwork than performing actual duties. In recent years, one solution promises a fundamental change to reduce the amount of time devoted to report writing through GenAI. The technology has developed to such a degree that industry offers law enforcement agencies the ability to use video recordings provided by body cameras or dash cameras to not only transcribe what was said by persons in the video (via voice recognition) but assemble the pertinent audio and video information into an actual police report that can be reviewed, corrected if necessary, and signed off by a commissioned law enforcement officer as his official report of the incident.

The promise made by GenAI is that officers will spend less time on overhead and can instead devote greater time to patrol and investigative duties elsewhere and thus be more efficient and less interrupted by paperwork.

To understand the problem let’s look at a brief synopsis of some milestones of police report generation over the past forty-five years.

With most agencies in the United States, the early 1980s consisted of sparse use of computer systems by line officers—they were typically database implementations for storing information of persons, vehicles, wanted or stolen records and as communications systems between agencies—rarely used by officers when completing crime reports and such. Most reports and citations were handwritten or typed and because of the amount of time used, especially in the case of handwritten forms, the amount of information conveyed was less, yet the time requirement was high. As the 1980s began to close personal computers began to be adopted by agencies for officer use and eventually the systems became more integrated and greatly more efficient. The speed of report writing not only increased, but the retrieval time and search ability was unmatched. Paper records and microfiche now became archaic.

Yet with the ease and efficiency of record keeping greatly improved, paradoxically so did the volume of information created, or required. This is certainly not unique to law enforcement as it has also been the case with patient charting with healthcare and in other fields. The efficiency invited the opportunity to create more data, and it was then expected.

Soon it became no longer necessary for a line officer to drive to a station to complete reports as in-car systems became standard practice, eventually replacing such things as paper citation forms given to violators but instead typing it in electronically, filing it automatically with the department and the courts, and printing off a copy for the violator. Nearly all the officer’s paperwork could be completed electronically and in the field.

The next advance began with what is commonly referred to as DashCams and BodyCams, electronic audio and video of law enforcement officer encounters with the world and individuals. Both have proven to be very useful in terms of correctly capturing information for which can be used by the criminal justice system. The cameras are greatly useful in correctly documenting events witnessed by the officer and in most respects are superior to not always reliable memory of those involved. In some ways they have reduced the amount of paperwork since the officer wearing the camera can simply provide a written synopsis in the written report and then reference an attached video as evidence. Or of this is not fully permitted, watching the video while composing the written report served to prompt the officer to write the report completely and accurately as depicted in the video. The GenAI service can take this to a high level of efficiency by generating most of the report in draft form whereupon the attesting officer then makes any corrections and fills in any gaps or external details. Such reports generated by AI mimic that of the conventional standard “style” of a crime report and from a workflow perspective the officer assumes a role that is in some way more of an editor rather than an author.

On a side note, when electronic videos of police cameras came to the attention of the public, the compliance requirement of freedom of information/public disclosure law went far beyond that of ordinary written reports which could relatively easily be redacted and disseminated when appropriate. Now departments must be tasked with being video editors to redact non-disclosable information such as faces, identities, words, addresses and other private information. The storage requirement for hours of video for sometimes hundreds of officers has become costly and added an additional burden.

Any new technology does have concerns that might offset some of the benefits. Some of the concerns are at what point does the AI become the primary author and the officer the rubber stamp approver. I present some open questions on the technology:

Will a low number of GenAI providers of police reports lead to a near monopoly of companies having access and control of information of most law enforcement agencies?

Will reliance on GenAI lead to an atrophy of skill in report writing in the ordinary sense by employees and if accuracy improves make them prone to overlook the occasional but highly consequential errors?

Law enforcement agencies have strict controls over dissemination of records for current or in-progress investigations and intelligence. Is GenAI use a vector by which outside actors can infiltrate police and government agencies? Those who might hack into the GenAI providers could learn of investigations or forewarn wanted persons of an upcoming arrest, or watch the agency via the AI input it submits?

Who controls the data given to the GenAI provider and is it subject to proper oversight? Will there be a temptation to sell the information to third parties?

How can bias be controlled in the GenAI response? The output is only as good as the input or the algorithm. Could the AI develop a bias as a result of incorporating the data it generates?

Are revisions and updates to each report considered work product and/or are they subject to discovery?

If the GenAI report is mostly completed by something other than the officer, how true is the officer’s testimony as to what he believed was happening since his mind did not actually create most of the report?

Is the present implementation of GenAI reports sufficiently efficient to mitigate the time required for necessary corrections and edits by the signing officer?

If the procedure is to plug the video/audio into the GenAI application, receive the generated draft, then make corrections and certify under penalty of perjury that the report is a true and accurate declaration of facts…are officers willing to risk a false swearing or perjury charge if computer generated data was inaccurate and overlooked?

Will GenAI created reports be considered expert analysis and will the output be challenged by the courts?

Are police administrators sufficiently adept and understanding of the artificial intelligence technology to fully understand managing or configuring the software?

Ethically have we fully considered what we are doing with GenAI with regard to justice? Those civilians and others who are subject to the GenAI reports have the most to lose as their lives can be changed markedly for the better or for the worse. Have we become so lazy and indifferent to them that we cannot be bothered to completely write a report ourselves?

What would become of the future of criminal justice if artificial intelligence is incorporated without restraint or consideration of the consequences? I can foresee a few areas where it promising use such as for generating a picture of an unidentified assailant from the descriptions of a witness, analyzing trace evidence, finding trends in data, and such. I do have reservations in what is made of the technology when it can be inexpensively replicated and used in place of a commissioned law enforcement officer.

An example would be incorporating AI into actually enforcing the law, where a camera films a speeding vehicle, a stop light violation, or eventually a strong armed robbery. The AI then identifies the persons involved, generates the report, and makes a charging decision with less and less human involvement. Are we to allow AI systems standing to enforce the law and are we going to question it since we have become so accustomed to its reliability and the fact that it is used everywhere? It might sound like “future shock” but we should consider how far we are willing to accept the convenience of low-cost surrogates of our responsibility.

By Darren Smith

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

Category:

Crime, Law, Science

Tagged with:

ICE, ICE Baby: Denver City Council Ends Car Theft Tracking System to Protect Illegal Immigrants

By: Jonathan Turley | June 27, 2025

The Denver City Council has voted unanimously to shutter a highly successful anti-theft auto license plate tracking system. The system was not closed due to concerns about privacy or finances. It was shut down because Democratic members believed that ICE could use the data to deport illegals.

In May, the council refused to renew the $666,000 contract with Flock for camera monitors around 70 Denver intersections to screen for car theft. That system resulted in the recovery of 170 stolen cars and 300 arrests. It is also credited with key evidence in the investigation of hit-and-run and murder cases.

However, it could also be used to assist ICE, and that is all that matters. Councilman Kevin Flynn explained it is all about Trump’s election: “We know that it can help solve crime. But I think since maybe Jan. 20 of this year, those concerns are greatly heightened and have a new reality about them.”

Council member Sarah Parady added:

“We’re living in an era where just this last week, actually, an executive order came out instructing the Department of Justice and the FBI to look for reasons to prosecute local elected officials and activists who they believe are, quote, unquote, obstructing ICE enforcement. This kind of surveillance technology is a gift if you have that kind of ill intent, and the federal government has that ill intent right now.”

Mayor Mike Johnston also stated that they need to halt these arrests because “today’s environment is much different than when the pilot began in early 2024, and there are new community concerns surrounding this technology.”

The police are obviously not happy, but car thieves are thrilled. If this seems utterly insane, keep in mind that this was a unanimous vote of the city council.

Category:

Tagged with:

“Where You At?”: California Vice Mayor Under Investigation After Calling on Gangs to Protect Their “Turf” Against ICE

By: Jonathan Turley | June 25, 2025

The Vice Mayor of Cudahy, Cynthia Gonzalez, is reportedly being investigated by the FBI after she posted a video urging criminal organizations like the 18th Street and Florencia 13 gangs to protect their “turf” against ICE. The call for gang action is disgraceful, particularly as ICE reports a 500 percent increase in attacks on its officers. However, I do not believe that the comments can be the basis for a criminal charge and would be considered protected speech.

Gonzalez has now taken down the video below, but she earlier called for these gangs to move against ICE:

“Not for nothing, but I wanna know where all the cholos are at in Los Angeles? Eighteenth street, Florencia, where’s the leadership at? Because you guys are all about territory, and this is 18th Street and this is Florencia, you guys tag everything up — claiming hood, and now that your hoods being invaded, by the biggest gang there is, there ain’t a peep out of you…It’s everyone else who’s not about the gang life that’s out there protesting and speaking up, we’re out there like fighting our turf, protecting our turf, protecting our people, and like where you at?”

This is not the first time that Democratic politicians have enlisted violent groups as political allies.

Ellison’s son, Minneapolis City Council member Jeremiah Ellison, declared his allegiance to Antifa in the heat of the protests this summer. During a prior hearing, Democratic senators refused to clearly denounce Antifa and falsely suggested that the far right was the primary cause of recent violence.

The problem with being a free speech advocate is that you are often compelled to defend speech that you find grotesque and reprehensible. Gonzalez would shake the faith of any free speech champion. However, her speech would be considered protected under the First Amendment. First, it is sufficiently vague on what she is suggesting to counter a charge of a call for imminent violence. Second, the Supreme Court held that even violent speech is protected.

Indeed, in Brandenburg v. Ohio, a 1969 case involving “violent speech,” the court struck down an Ohio law prohibiting public speech that was deemed as promoting illegal conduct. It supported the right of the Ku Klux Klan to speak out, even though it is a hateful organization. Likewise, in RAV v. City of St. Paul in 2011, it struck down a ban on any symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” In Snyder v. Phelps, also in 2011, the court said the hateful protests of Westboro Baptist Church were protected.

The video may not be criminal, but it is still an indictment of how some Democratic politicians continue to pander to violent groups for political purposes. It is a dangerous game. History has shown that those who fuel extreme groups often find themselves later targets as mob rule takes hold. Gonzalez may find that she is also unwelcomed on their “turf.”

Category:

Tagged with:

Always Ready, Always There: Democrats Mobilize Against the National Guard Deployment

By: Jonathan Turley | June 9, 2025

Below is my column in Fox.com on the deployment of National Guard in Los Angeles. Another round of court challenges is unfolding, but the escalation is likely to continue on both sides. While the Guard’s motto is “Always Ready, Always There!” California Democrats do not want them between rioters and federal law enforcement.

Here is the column:

Gov. Gavin Newsom was in his element this week. After scenes of burning cars and attacks on ICE personnel, Newsom declared that this was all “an illegal act, an immoral act, an unconstitutional act.” No, he was not speaking of the attacks on law enforcement or property. He was referring to President Donald Trump’s call to deploy the National Guard to protect federal officers.

Newsom is planning to challenge the deployment as cities like Glendale are cancelling contracts to house detainees and reaffirming that local police will not assist the federal government.

Trump has the authority under Section 12406 of Title 10 of the U.S. Code to deploy the National Guard if the president is “unable with the regular forces to execute the laws of the United States.” The Administration is saying that that is precisely what is unfolding in California, where mobs attack vehicles and trap federal personnel.

Most critics are challenging the deployment on policy grounds, arguing that it is an unnecessary escalation. However, even critics like Berkeley Law Dean Erwin have admitted that “Unfortunately, President Trump likely has the legal authority to do this.”

There is a fair debate over whether this is needed at this time, but the President is allowed to reach a different conclusion. Trump wants the violence to end now as opposed to escalating as it did in the Rodney King riots or the later riots after the George Floyd killings, causing billions in property damage and many deaths.

Courts will be asked to halt the order because it did not technically go through Newsom to formally call out the National Guard.

Section 12406 grants Trump the authority to call out the Guard and employs a mandatory term for governors, who “shall” issue the President’s order. In the memo, Trump also instructed federal officials “to coordinate with the Governors of the States and the National Guard Bureau.” Newsom is clearly refusing to issue the orders or coordinate the deployment.

Even if such challenges are successful, Trump can clearly flood the zone with federal authority. Indeed, the obstruction could escalate the matter further, prompting Trump to consider using the Insurrection Act, which would allow troops to participate directly in civilian law enforcement. In 1958, President Eisenhower used the Insurrection Act to deploy troops to Arkansas to enforce the Supreme Court’s orders ending racial segregation in schools.

The Trump Administration has already claimed that these riots “constitute a form of rebellion against the authority of the Government of the United States.” In support of such a claim, the Administration could cite many of the Democratic leaders now denouncing the claim.

After January 6th, liberal politicians and professors insisted that the riot was an “insurrection” and, in claiming that Trump and dozens of Republicans could be removed from ballots under the 14th Amendment. Liberal professors insisted that Trump’s use of the word “fight” and questioning the results of an election did qualify as an insurrection. They argued that you merely need to show “an assemblage of people” who are “resisting law” and “using force or intimidation” for “a public purpose.” The involvement of inciteful language from politicians only reinforced these claims. Sound familiar?

Democrats are using this order to deflect from their own escalation of the tensions for months. From Minnesota Gov. Tim Walz calling ICE officers “Gestapo” to others calling them “fascists” and “Nazis,” Democratic leaders have been ignoring objections that they are fueling the violent and criminal responses. It did not matter. It was viewed as good politics.

While Newsom and figures like Sen. Cory Booker (D., N.J.) have called these “peaceful” protests, rocks, and Molotov cocktails have been thrown at police as vehicles were torched. Police had to use tear gas, “flash bang” grenades, and rubber bullets to quell these “peaceful” protesters.

There appears little interest in de-escalation on either side. For the Trump Administration, images of rioters riding in celebration around burning cars with Mexican flags are only likely to reinforce the support of the majority of Americans for the enforcement of immigration laws.

For Democrats, they have gone “all in” on opposing ICE and these enforcement operations despite support from roughly 30 percent of the public.

Some democrats are now playing directly to the mob. A Los Angeles City Council member, Eunisses Hernandez, reportedly urged anti-law enforcement protesters to “escalate” their tactics against ICE officers: “They know how quickly we mobilize, that’s why they’re changing tactics. Because community defense works and our resistance has slowed them down before… and if they’re escalating their tactics then so are we. When they show up, we gotta show up even stronger.”

So, L.A. officials are maintaining the sanctuary status of the city, barring the cooperation of local police, and calling on citizens to escalate their resistance after a weekend of violent attacks. Others have posted the locations of ICE facilities to allow better tracking of operations while cities like Glendale are closing facilities.

In Washington, Jeffries has pledged to unmask the identities of individual ICE officers who have been covering their faces to protect themselves and their families from growing threats.

While Democrats have not succeeded in making a convincing political case for opposing immigration enforcement, they may be making a stronger case for federal deployment in increasingly hostile blue cities.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Tagged with:

British Blasphemy Prosecution: London Man Convicted After Burning Qur’an

By: Jonathan Turley | June 4, 2025

We recently discussed how the United Kingdom has continued its erosion of free speech by pushing an effective blasphemy law. Now, a London man has been convicted of a “religiously aggravated public order offence.” Hamit Coskun, 50, a Turkish-born Armenian-Kurdish atheist was arrested after burning a Qur’an.

Coskun was protesting the government of Recep Tayyip Erdoğan in Ankara over his embrace of radical Islamic principles. Exclaiming “f**k Islam” and “Islam is religion of terrorism,” he burned the Qur’an and was then slashed by a Muslim man with a knife. Critics were outraged that the man (who later pleaded guilty) was released while police continued to hold Coskun.

Despite arguing that his protest was protected speech, District Judge John McGarva convicted him and declared that his actions were “highly provocative” and that they were “motivated at least in part by a hatred of Muslims.” Judge McGarva made clear that his views of Islam would not be tolerated in the United Kingdom:

“After considering the evidence, I find you have a deep-seated hatred of Islam and its followers. That’s based on your experiences in Turkey and the experiences of your family. It’s not possible to separate your views about the religion to your views about the followers.’

“I do accept that the choice of location was in part that you wanted to protest what you see as the Islamification of Turkey. But you were also motivated by the hatred of Muslims and knew some would be at the location.”

Coskun later correctly condemned the decision as “an assault on free speech” and added:

“Christian blasphemy laws were repealed in this country more than 15 years ago, and it cannot be right to prosecute someone for blaspheming against Islam. Would I have been prosecuted if I’d set fire to a copy of the bible outside Westminster Abbey? I doubt it.”

For years, I have been writing about the decline of free speech in the United Kingdom and the steady stream of arrests, including in my book, The Indispensable Right: Free Speech in an Age of Rage.

A man was convicted for sending a tweet while drunk referring to dead soldiers. Another was arrested for an anti-police t-shirt. Another was arrested for calling the Irish boyfriend of his ex-girlfriend a “leprechaun.” Yet another was arrested for singing “Kung Fu Fighting.” A teenager was arrested for protesting outside of a Scientology center with a sign calling the religion a “cult.”

Nicholas Brock, 52, was convicted of a thought crime in Maidenhead, Berkshire. The neo-Nazi was given a four-year sentence for what the court called his “toxic ideology” based on the contents of the home he shared with his mother in Maidenhead, Berkshire. Judge Peter Lodder QC dismissed free speech or free thought concerns with a truly Orwellian statement:

“I do not sentence you for your political views, but the extremity of those views informs the assessment of dangerousness.”

Lodder lambasted Brock for holding Nazi and other hateful values:

“[i]t is clear that you are a right-wing extremist, your enthusiasm for this repulsive and toxic ideology is demonstrated by the graphic and racist iconography which you have studied and appeared to share with others…”

The fear is that an expanded hate speech law that includes criticism of Islamophobia will operate like a British blasphemy law. In 2008, the common law offences of blasphemy and blasphemous libel were abolished in England. This new effort could constructively restore such prosecutions as they relate to Islam.

Category:

Crime, Free Speech, International Politics, Law, Religion

Tagged with:

The Red Line: Democratic Officials Claim a Dangerous License for Illegality

By: Jonathan Turley | May 20, 2025

Across the country, a new defense is being heard in state and federal courtrooms. From Democratic members of Congress to judges to city council members, officials claim that their official duties include obstructing the official functions of the federal government. It is a type of liberal license that excuses most any crime in the name of combating what Minn. Gov. Tim Walz called the “modern-day Gestapo” of the Immigration and Customs Enforcement (ICE).

The latest claimant of this license is Rep. LaMonica McIver (D-NJ), who was charged with assaulting, resisting, and impeding law enforcement officers during a protest at Delaney Hall ICE detention facility in Newark, New Jersey. McIver is shown on video forcing her way into an ICE facility and striking and shoving agents in her path.

This was not a major incursion, but these state and federal officials joined a mob in briefly overwhelming security and breaching the fence barrier after a bus was allowed through the entrance. Federal officials were able to quickly force back the incursion.

McIver and House Democrats insisted that McIver’s forcing her way into the facility might be trespass and assault for other citizens, but she was merely exercising “legislative oversight.” Rep. Alexandria Ocacio-Cortez (D., N.Y.) declared “You lay a finger on someone – on Bonnie Watson Coleman or any of the representatives that were there – you lay a finger on them, we’re going to have a problem.”

Rep. Eric Swallwell (D., Cal.) promised more such actions: “I promise you there’s gonna be more un-noticed visits by my colleagues where they show up and they better be let in.”

Minority Leader Hakeem Jeffries (D., N.Y.) even ominously warned the federal government that Democrats would bring down the house if it tried to charge McIver: “It’s a red line. They know better than to go down that road.”

Well, the red line was crossed in a big way after Acting U.S. Attorney for the District of New Jersey Alina Habba charged McIver with a felony under Title 18, United States Code, Section 111(a)(1). The ACLU called the charge “authoritarianism” and insisted that these state and federal politicians “have every right to exercise their legally authorized oversight responsibilities for expanded immigration detention in New Jersey.”

The problem with the oversight claim is that McIver’s status as a member of Congress does not allow her access into closed federal facilities. Congress can subpoena the Executive Branch or secure court orders for access. However, members do not have immunity from criminal laws in unilaterally forcing their way into any federal office or agency. If that were the case, Rep. Alexandria Ocacio-Cortez would not have posted images of herself crying at the fence of an immigrant facility, she could have climbed over the fence in the name of oversight.

Conversely, Republicans in the Biden Administration could have simply pushed their way into the Justice Department to seek the files on the influence-peddling scandal.

Yet, the point of the claim is less of a real criminal defense and more of a political excuse.

It is the same claim being heard this week from Worcester City Councilor Etel Haxhiaj who was shown in a video shoving and obstructing ICE officers attempting to arrest a woman on immigration charges. Two other individuals (including a Democratic candidate for a school board) were arrested, but not Haxhiaj who claimed that she was merely protecting “a constituent.” After the melee, the city manager issued an order preventing city police from assisting in any way in the carrying out of such civil immigration enforcement efforts by the federal government.

Even judges are claiming the same license. In Wisconsin, Judge Hannah Dugan has been charged with obstructing a federal arrest of an illegal immigrant who appeared in her courtroom. Dugan heard about agents waiting outside in the hallway to arrest the man and went outside to confront the agents. She told them to speak to the Chief Judge and that they needed a different warrant. The agents complied and the Chief Judge confirmed that they could conduct the arrest. In the interim, however, Dugan led the man out a non-public door and facilitated his escape (he was arrested after a chase down a public street).

Judge Duggan also claimed that she was carrying out her duties even though her hearing was over, the charges were not part of state matter, and the arrest was being carried out outside of her courtroom. She was declared “a hero” by Democratic politicians and pundits.

As Democratic leaders like Walz engage in rage rhetoric and paint Republicans (and federal law enforcement) as Nazis, political violence is on the rise across the country. Many of the people burning Teslas and engaging in such crimes claim the same type of license that the ends justify the means. That includes affluent professionals who are now shoplifting from Whole Foods as a “protest” against Jeff Bezos meeting with Trump.

When the Administration sought to investigate those burning Teslas and dealerships, Rep. Dan Goldman (D., N.Y.) denounced it as a “political weaponization” of the legal system. The comments suggest that such arson is somehow a form of political expression on the left.

House Minority Leader Jeffries was correct that a “red line” was crossed but not the one that he was thinking of in threatening consequences for any charges. The red line is the one separating political expression and criminal conduct.

Border Czar stressed repeatedly to political leaders that they can protest and refuse to help but “you can‘t cross the line” into obstruction and interference with their operations.

If oversight means that members can force their way into any federal facilities, we would have 535 roaming inspectors general who could wander at will through the executive branch.

Rep. McIver would be better to claim a different type of oversight, in allowing her passion to briefly overwhelm her judgment in rushing into the facility.

In the end, however, McIver and Duggan may have a license of a different kind.

Both have the advantage of being charged in liberal districts where they would appear before sympathetic jurors. They need to just convince a single jury to engage in “jury nullification,” to vote based on the cause, not the crime, in the case.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

A shorter version of this column appeared in the New York Post.

Category:

Tagged with:

“When Must We Kill Them?”: George Mason Student Captures the Growing Violent Ideation on the Left

By: Jonathan Turley | April 23, 2025

There is controversy at George Mason University after Nicholas Decker, an economics PhD student published an essay asking “When Must We Kill Them?” in reference to Trump and his supporters. The essay captures the growing violent ideation on the left, fueled by rage rhetoric from politicians and commentators. The danger is that, for some on the extremes of our society, the question is not “when must we kill them?” but “when can we kill them?”

On his Substack “Homo Economicus,” Decker warns that “evil has come to America” and that Trump is “engaged in barbarism” and seeking “to destroy the institutions which oppose” him. He then suggests that the answer may be murder and violence.

“What remains for us to decide is when we fight,” Decker writes. “If the present administration wills it, it could sweep away the courts, it could sweep away democracy, and it could sweep away freedom. Protest is useful only insofar as it can affect action. Our words might sway the hearts of men, but not of beasts.‘

“If the present administration chooses this course, then the questions of the day can be settled not with legislation, but with blood and iron. In short, we must decide when we must kill them.“

This is obviously just the reckless rhetoric of one individual. However, it is indicative of a larger and growing problem on the left where people are increasingly turning to political violence. Rage gives people a sense of license to break free from basic norms of civility, decency, and even legality.

Decker is an example of that unhinged hatred masquerading as logic.

I found the essay deeply depressing. This is a student who clearly must be interested in teaching, but has not only undermined his chances of teaching but has adopted the very antithesis of an intellectual life.

Yet, I do not believe that this essay should be the basis for prosecution. The university has referred the matter to federal and state authorities for investigation. I have long opposed violent speech from being criminalized.

As someone who has received death threats for years from the left, I do not take such viewpoints lightly. However, I have long disagreed with sedition and violent speech prosecutions as a general matter.

College is often a time when students dabble with extreme or controversial viewpoints. Most quickly return to the center and moderate their positions. Some yield to the impulse to shock or to unsettle others. Again, it does not excuse the chilling statements made in this essay. While Decker added that “violence is a last resort,” he still maintains that it is an option. He ignores that Trump is the product of a democratic process and that the legal process is working to sort out these disputes.

Trump is likely to prevail in some cases, but not all. Our system does not guarantee that you will prevail in such controversies, and failure to succeed is not a license to use violence “as a last resort.”

What I am more concerned about is the culture that is producing such increasingly violent rhetoric on our campuses. Many current faculty have long espoused such violent positions. Indeed, some faculty members continue to make the news for violent political acts.

It is now common to hear inflammatory language from professors advocating “detonating white people,” denouncing police, calling for Republicans to suffer, strangling police officers, celebrating the death of conservatives, calling for the killing of Trump supporters, supporting the murder of conservative protesters and other outrageous statements. One professor who declared that there is “nothing wrong” with such acts of violence as killing conservatives was actually promoted. That is the culture that produces this type of extreme rhetoric among students. These faculty members have normalized violent speech.

Of course, some professors have gone further and committed acts of political violence. Such conduct should be prosecuted and those faculty members fired. However, even in those extreme cases, liberal faculty have often rallied around their colleagues.

Years ago, many of us were shocked by the conduct of University of Missouri communications professor Melissa Click who directed a mob against a student journalist covering a Black Lives Matter event. Yet, Click was hired by Gonzaga University. Since that time, we have seen a steady stream of professors joining students in shouting down, committing property damage, participating in riots, verbally attacking students, or even taking violent action in protests.

At the University of California Santa Barbara, professors actually rallied around feminist studies associate professor Mireille Miller-Young, who physically assaulted pro-life advocates and tore down their display. Despite pleading guilty to criminal assault, she was not fired and received overwhelming support from the students and faculty. She was later honored as a model for women advocates.

At Hunter College in New York, Professor Shellyne Rodríguez was shown trashing a pro-life display of students.

She was captured on a videotape telling the students that “you’re not educating s–t […] This is f–king propaganda. What are you going to do, like, anti-trans next? This is bulls–t. This is violent. You’re triggering my students.”

Unlike the professor, the students remained calm and respectful. One even said “sorry” to the accusation that being pro-life was triggering for her students.

Rodríguez continued to rave, stating, “No you’re not — because you can’t even have a f–king baby. So, you don’t even know what that is. Get this s–t the f–k out of here.” In an Instagram post, she is then shown trashing the table.

Hunter College, however, did not consider this unhinged attack to be sufficient to terminate Rodríguez. It was only after she later chased reporters with a machete that the college fired Rodríguez. She was then hired by another college.

Another example comes from the State University of New York at Albany, where sociology professor Renee Overdyke shut down a pro-life display and then resisted arrest. One student is heard screaming, “She’s a [expletive] professor.” That, of course, is the point.

This student is voicing the same rage that he has heard from teachers and commentators. The current generation of faculty and administrators has created this atmosphere of political radicalism and moral relativism on campuses.

I genuinely feel saddened by Decker’s essay because we likely share a desire to teach and to be part of an intellectual community. The most essential part of that life is to defend a diversity of viewpoints and oppose violence as a means to force ideological compliance in others. I hope that Decker and others in our community will come to understand that in time.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Crime, Education, Free Speech, Law, Political

Tagged with:

The American Jacobin: How Some on the Left have Found Release in an Age of Rage

Commentary by Jonathan Turley | April 7, 2025

Below is my column in the Hill on the rising political violence on the left. Many have found an irresistible release from both reason and responsibility in rage. A new study found more people embracing political violence. Joel Finkelstein, the lead author of the report, stated that “what was formerly taboo culturally has become acceptable… We are seeing a clear shift – glorification, increased attempts and changing norms – all converging into what we define as ‘assassination culture.’” Roughly 40 percent reportedly found it somewhat justifiable to burn a Tesla or even to kill Donald Trump.

Here is the column:

“We should replace our piece of crap Constitution.”

Those words from author Elie Mystal, a regular commentator on MSNBC, are hardly surprising from someone who previously called the Constitution “trash” and urged not just the abolition of the U.S. Senate but also of “all voter registration laws.” But Mystal’s radical rhetoric is becoming mainstream on the left, as shown by his best-selling books and popular media appearances.

There is a counter-constitutional movement building in law schools and across the country. And although Mystal has not advocated violence, some on the left are turning to political violence and criminal acts. It is part of the “righteous rage” that many of them see as absolving them from the basic demands not only of civility but of legality. They are part of a rising class of American Jacobins — bourgeois revolutionaries increasingly prepared to trash everything, from cars to the Constitution.

The Jacobins were a radical group in France that propelled that country into the worst excesses of the French Revolution. They were largely affluent citizens, including journalists, professors, lawyers, and others who shredded existing laws and destroyed property. It would ultimately lead not only to the blood-soaked “Reign of Terror” but also to the demise of the Jacobins themselves as more radical groups turned against them.

Of course, it is not revolution on the minds of most of these individuals. It is rage. Rage is the ultimate drug. It offers a release from longstanding social norms — a license to do those things long repressed by individuals who viewed themselves as decent, law-abiding citizens. Across the country, liberals are destroying Tesla cars, torching dealerships and charging stations, and even allegedly hitting political dissenters with their cars.

Last week, affluent liberal shoppers admitted that they are shoplifting from Whole Foods to strike back at Jeff Bezos for working with the Trump administration and moving the Washington Post back to the political center. They are also enraged at Mark Zuckerberg for restoring free speech protections at Meta.

One “20-something communications professional” in Washington explained “If a billionaire can steal from me, I can scrape a little off the top, too.” These affluent shoplifters portrayed themselves as Robin Hoods. Of course, that is assuming Robin Hood was stealing organic fruit from the rich and giving it to himself.

On college campuses, affluent students and even professors are engaging in political violence. Just this week, University of Wisconsin Professor José Felipe Alvergue, head of the English Department, turned over the table of College Republicans supporting a conservative for the Wisconsin Supreme Court. He reportedly declared, “The time for this is over!” Likewise, a mob this week attacked a conservative display and tent on the campus of the University of California-Davis as campus police passively watched. The Antifa protesters, carrying a large banner with the slogan “ACAB” or “all cops are bastards,” trashed the tent and carried it off.

Antifa is a violent and vehemently anti-free speech group that thrives on U.S. college campuses. In his book “Antifa: The Anti-Fascist Handbook,” Mark Bray explains that “most Americans in Antifa have been anarchists or antiauthoritarian communists. … From that standpoint, ‘free speech’ as such is merely a bourgeois fantasy unworthy of consideration.”

Of course, many of the American Jacobins are themselves bourgeois or even affluent figures. And they are finding a host of enablers telling them that the Constitution itself is a threat, and that the legal system has been corrupted by oligarchs, white supremacists, or reactionaries. This includes leading academics and commentators who are denouncing the Constitution and core American values. Erwin Chemerinsky, dean of the UC Berkeley Law School, is the author of “No Democracy Lasts Forever: How the Constitution Threatens the United States.”

In a New York Times op-ed, “The Constitution Is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale called for the nation to “reclaim America from constitutionalism.”

Commentator Jennifer Szalai has scoffed at what she called “Constitution worship.” “Americans have long assumed that the Constitution could save us,” she wrote. “A growing chorus now wonders whether we need to be saved from it.”

As intellectuals knock down our laws and Constitution, radicals are pouring into the breach. Political violence and rage rhetoric are becoming more common. Some liberals embraced groups like Antifa, while others shrugged off property damage and violent threats against political opponents. It is the very type of incitement or rage rhetoric that Democrats once accused Trump of fostering in groups like the Proud Boys.

Members of Congress such as Rep. Jasmine Crockett (D-Texas) have called for Tesla CEO Elon Musk to be “taken down” and said that Democrats have to be “OK with punching.” Some take such words as a justification to violently attack a system supposedly advancing the white supremacy or fascism. Fortunately, such violence has been confined so far to a minority of radicalized individuals, but there is an undeniable increase in such violent, threatening speech and in actual violence.

The one thing the American Jacobins will not admit is that they like the rage and the release that it brings them. From shoplifting to arson to attempted assassination, the rejection of our legal system brings them freedom to act outside of morality and to take whatever they want.

Democratic leaders see these “protests” as needed popularism to combat Trump — to make followers “strike ready” and “to stand up and fight back.”

For a politician, a mob can become irresistible if you can steer it against your opponents. The problem is controlling the mob once it has broken free of the bounds of legal and personal accountability.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Crime, Education, Law, Political, political violence

Tagged with:

Jonathan Turley Op-ed: UW-EAU Department Chair Allegedly Destroys College Republican Table

Commentary by Jonathan Turley | April 3, 2025

We have been following the rise of political violence on the left since the Trump election. In reality, attacks on conservative and pro-life faculty and students is nothing new. Today, I am speaking at the University of North Carolina in Chapel Hill on free speech after a student recently trashed a pro-life table on the campus in Asheville. Now, on the campus of the University of Wisconsin-Eau Claire, a professor allegedly trashed a table of the College Republicans over their support for Wisconsin Supreme Court candidate Brad Schimel. The accused José Felipe Alvergue, is not just a professor but the chair of the English department.

Tatiana Bobrowicz, the chair of the College Republicans at the school, said she set up the table supporting Schimel outside the student center about 8:30 a.m. Tuesday, with candy, doughnuts and literature. Then a man walked up and demanded to know what they were doing. He accused them of being too close to a polling location (which was located in the nearby student center).

Bobrowicz tried to explain that they were not in violation (which allows for tables beyond 100 feet) and that location was approved by the university. She then said that the man declared “the time for this is over,” flipped the table over and then walked away.

Bobrowicz immediately called the police and the UW-Eau Claire identified the man as José Felipe Alvergue, the chair of the English department. He has been put on leave by the university.

In his university bio, Alvergue identifies as “a member of the Salvadoran diaspora.” He adds this rather cryptic statement about “unlocking empathy”:

” I believe that we can’t unlock the empathy hidden behind words if we don’t understand what is at stake in the risk writers and artists take when they decide to transform the matter which makes up the world around them into the story words communicate.”

He is now charged with disorderly conduct, according to Wisconsin court records. While this is a relatively minor crime, it was a crime committed against both students and free speech on campus. He must appear for a court appearance on May 7. He would be hardly unique in advocating or even being convicted of political violence on campus.

At the University of Rhode Island, professor Erik Loomis defended the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence. The University of Rhode Island was so appalled by his apparent support for political violence that it made him Director of Graduate Studies of History.

At Hunter College in New York, Professor Shellyne Rodríguez was shown trashing a pro-life display of students.

Unlike the professor, the students remained calm and respectful. One even said “sorry” to the accusation that being pro-life was triggering for her students.

It was only after she later chased reporters with a machete that the college fired Rodríguez. She was then hired by another college.

If convicted, Alvergue would be not just guilty of the underlying charge but committing political violence against students. There does not appear to have been mitigating circumstances or any provocation other than students who hold an opposing view from his own.

He then walked away rather than address the matter with the students and the authorities. If convicted, the question is whether conservative students should have to wait for Alvergue to find a way to “unlock [his] empathy” through what is clearly uncontrollable rage.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

censorship, Crime, Education, Free Speech, Law, Political

Tagged with:

Murphy’s Law: How New Jersey’s Governor Turned Virtue Signaling into a Virtual Nightmare

By Jonathan Turley | February 5, 2025

Below is my column on Fox.com on the bizarre controversy surrounding New Jersey Gov. Phil Murphy and his suggestion that he was housing an illegal migrant in his home. It is a new version of Murphy’s Law on how virtue signaling can turn into a virtual nightmare for Democrats over immigration.

Here is the column:

For years, engineers have cited Murphy’s Law that “anything that can go wrong will go wrong.” The law is attributed to aerospace engineer Edward A. Murphy Jr. from the 1940s. However, this week, the law seems re-written by New Jersey Gov. Phil Murphy, who is under fire after suggesting that he may be sheltering an undocumented woman above his garage.

Murphy was being interviewed by the liberal group Blue Wave New Jersey and thrilled his Democratic base by indicating that he had given sanctuary to an undocumented person in his home. It was a curious moment when, after promising sanctuary, Murphy not only appeared to out his guest but then taunted ICE to come and try to take her. After seemingly staking out the immigrant like a sacrificial goat in a lion hunt, Murphy’s virtue signaling summoned the authorities. And now, the Iceman Cometh.

Trump’s border czar Tom Homan vowed to “look into” the Governor’s house guest.

The interview illustrated how some strive to prove their progressive bona fides at the cost of those they claim to be protecting. It is akin to the good people of Martha’s Vineyard singing to undocumented persons just before shipping them off to a distant military base.

Of course, Murphy appeared to struggle with calling her an undocumented migrant, let alone an illegal alien. Instead. she was described by the governor as a person “whose immigration status is not yet at the point that they are trying to get it to.”

Murphy explained how

“Tammy and I were talking about – I don’t want to get into too much detail, but there is someone in our broader universe whose immigration status is not yet at the point that they are trying to get it to. And we said, you know what? Let’s have her live at our house above our garage.”

You could almost hear the cooing from the crowd. Murphy then added the taunt to the tell: “And good luck to the feds coming in to try to get her.” Of course, the most important “details” for the woman are her status and location.

The most important detail for Murphy was to suggest that he and Tammy have a real live undocumented person housed above their cars. Not a poster or pamphlet on undocumented entry, but a real undocumented person. Of course, what can be lost in such moments is not just the person’s identity but her humanity. She did not seem like a real person at all . . . more like some prop or novelty item to brag about. What was so striking about the interview is that ICE is not generally rounding up undocumented persons. Rather they have focused on aliens who have committed criminal acts. While Murphy and others have issued chest-pounding declarations to defy the federal government, the public is overwhelmingly in support of the effort. Murphy previously declared that he would “fight to the death” against Trump’s agenda.

A recent poll by The New York Times and Ipsos found that an astronomical 88 percent of citizens supported “deporting immigrants who are here illegally and have criminal records.”

Within days of the Trump Administration coming into office, thousands of such targets were located and arrested. For other immigrants, there is still a comfort in numbers. With millions allowed into the country under President Biden, most are keeping a low profile in the knowledge that they are not the priority for ICE.

However, when a governor openly taunts the government and advocates the use of private homes as sanctuaries, he forces the hand of the government. It is even more problematic if this is the governor’s public residence or under the protection of state officers. Murphy may be using such state resources to violate federal law.

It was not clear what the status of Murphy’s guest was. The governor’s breathless account of his own courageous stand suggested that she would be subject to deportation, if discovered.

Under Section 1324 of Title 8 of the United States Code, it is unlawful when anyone “conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.”

That is when Murphy’s law kicked in with a vengeance. After his boast about “hav[ing] her live at our house above our garage,” a close associate later suggested that it was all a type of liberal projection. It is now claimed that he never actually made the offer to the person, but “mentioned to someone else that they could move in if they want, so I think that’s where some of the misunderstanding was.” The source also added that “The person wasn’t undocumented. The person was a legal resident of the United States of America.”

Ok, let’s get this straight. Murphy did an interview with a liberal group on how he agreed to “have her live at our house above our garage” but could not share any other details to be safe. Nevertheless, Murphy warned about the reception if “the feds com[e] in to try to get her.” Yet, his associate is now claiming that there is no harbored illegal to get. Not only was she never in the garage, but she is perfectly legal and is not subject to deportation. It was like Murphy bragging that he has Chris Christie living above his garage. It is hardly the stuff of Harriett Tubman and the Underground Railroad.

The bizarre controversy, however, has greater importance in what Murphy was struggling to convey. He and other governors are pledging to bar any cooperation with the federal government in the deportation of unlawful immigrants. The latest example was Wisconsin Gov. Tony Evers, who pledged to continue to defy federal enforcement even at the loss of substantial state aid. As with Murphy’s faux resident refugee, the declarations in states from Illinois to New Jersey to Massachusetts will force the hand of the federal government. While the federal government cannot “commandeer” state officials in the enforcement of federal law, it also does not have to subsidize those officials in frustrating enforcement efforts. The Trump Administration is expected to move to block funds for sanctuary states and cities. So, in addition to billions being spent on housing and benefits, these states will lose billions in federal aid.

What is most striking is that it never mattered if the Murphy claim was true or not. For many, it was another “I am Spartacus Moment” from a New Jersey Democratic politician that fell comically flat. Gov. Murphy’s law should be a cautionary tale for all of his Democratic colleagues in state houses. Virtue signaling can summon costs not just for themselves but for their states.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Tagged with:

The End of Shock and Awe: How the Justice Department Made the Case for the J6 Pardons

By: Jonathan Turley | January 21, 2025

Below is my column in the New York Post on the pardoning of the January 6th defendants by President Donald Trump. The scope of the pardon appears broader than some had hoped. What is clear is that any such relief should not extend to violent actors, particularly those who attacked police officers. However, the Justice Department itself may have made the strongest case for presidential pardons.

Here is the column:

On January 20, 2025, the “shock and awe” campaign of the Justice Department came to an end as President Donald Trump pardoned 1,500 January 6th defendants.

Four years ago, the Justice Department set out to send a chilling message to the nation. In an interview with CBS News a year later, Justice Department official Michael Sherwin indicated that they wanted to send a message with the harsh treatment of defendants. Sherwin explained that “our office wanted to ensure that there was shock and awe … it worked because we saw through media posts that people were afraid to come back to D.C. because they’re, like, ‘If we go there, we’re gonna get charged.’ … We wanted to take out those individuals that essentially were thumbing their noses at the public for what they did.”

The awe is gone but the shock remains at the Justice Department. If Sherwin and his colleagues hoped to “Trump proof” the nation, they failed in spectacular fashion. While there was ample basis for criminal charges, the excessive treatment of some of the January 6th defendants undermined the credibility of their prosecutions for many.

That is no easy feat.

Most of us denounced the January 6th riot as a desecration of our constitutional process. Those who engaged in the rioting, and most importantly the violence, needed to be punished. However, what followed left many increasingly uneasy. The Justice Department rounded up hundreds and, even though most were charged with relatively minor crimes of unlawful entry or trespass, the Justice Department opposed the release of many from jail and sought absurdly long sentences in some cases. It also sought restrictions on defendants that raised troubling first amendment concerns.

In my recent book, “Indispensable Right,” I discuss these cases and their troubling elements.

A good example is the handling of the most well-known case of the so-called QAnon Shaman. Bare-chested, wearing an animal headdress, horns, and red-white-and-blue face paint, Jake Angeli Chansley became the iconic image of the riot.

Seeking to make examples of these defendants, the Justice Department took special measures in hammering Chansley. He was held in solitary confinement and denied bail.

Chansley was treated more harshly because of his visibility. It was his costume, not his conduct, that seemed to drive the sentencing. In the hearing, Judge Royce Lamberth noted, “He made himself the image of the riot, didn’t he? For good or bad, he made himself the very image of this whole event.”

Lamberth hit Chansley with a heavy 41-month sentence for “obstructing a federal proceeding.”

However, long withheld footage, showed recently that Chansley (like hundreds of people that day) simply walked into the Capitol past police officers and was then escorted by officers through the Capitol. At one point, two officers not only appear to guide him to the floor but actually try to open locked doors for him. Chansley is shown walking unimpeded through a large number of armed officers with his four-foot flag-draped spear and horned Viking helmet on his way to the Senate floor.

Does that make Chansley’s actions acceptable, let alone commendable? Of course not. He deserved to be arrested and punished. However, what many saw was a troubled individual being made an example for others.

In my book, I discuss how, in history, “rage rhetoric” was allowed to become “state rage.” This is one such case.

Trump ran on the promise to pardon these defendants and secured not just the White House but the popular vote. It was not just the public that rejected the narrative of January 6th as an “insurrection.”

In the recent Supreme Court decision in Fischer v. U.S. to reject hundreds of charges in January 6th cases for the obstruction of legal proceedings, the Court left most cases as simply a mass trespass and unlawful entry.

The shock may be gone for these defendants, but it may only be beginning for the Justice Department and the FBI.

When the campaign of Hillary Clinton secretly funded the infamous Steele Dossier to launch the Russian conspiracy investigation, it was the Justice Department that was not just the willing but eager partner.

The “insurance policy” described by former FBI official Peter Strzok was redeemed in investigations that derailed much of Trump’s first term.

Later, it was the Justice Department again that pursued a no-holds-barred effort to convict Trump before the election.

The Justice Department is the hardest of silos in Washington to reform. Unlike most departments, it is largely homogenous, with thousands of lawyers who share professional and cultural ties. It is a department composed of people who are by their very definition, litigious.

Trump insisted on selecting an Attorney General, nominee Pam Bondi, who has no past ties or identification with the department. For the Justice Department, it must feel like the Visigoths arriving at the gates of Rome . . . only to be let in by the citizens.

According to polling, the public ultimately found the “barbarians” less threatening than those who have insisted that Rome would fall. That must certainly be shocking for many in Washington, but the record of the Justice Department showed how the awe can become awful when officials feel the license of state rage.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Tagged with:

Jacksonian Obstruction: Smith Explains How He Was Planning to Circumvent the Decision in Fischer

By: Jonathan Turley | January 14, 2025

The release of the first part of Jack Smith’s report at midnight was the special counsel’s version of the Supreme Court’s Dobbs decision: we had seen it before. Putting aside the public filings where Smith fought to get this information out before the election, there was little new in the report. What the report did not contain is an explanation of how Smith destroyed his own cases against Trump. However, one notable element was Smith’s reliance on a dubious concurrence by Justice Ketanji Brown Jackson, the subject of a prior column on what would be an interpretation that was too clever by half.

Much of the report was vintage Smith in dismissing countervailing precedent and insisting that he could “obtain and sustain a conviction at trial.” He may be right about obtaining a conviction before a D.C. jury and a highly motivated judge against Trump. However, he would not have been able to sustain any conviction — and this report makes that abundantly clear.

Smith repeats the same conclusory evidence, such as citing how Trump said “fight” ten times in his January 6th speech. He minimized the immunity decision by removing some evidence but kept largely the original indictment. However, the treatment of the obstruction claims was the most telling and indicative of Smith, who has repeatedly lost cases due to overextending constitutional and statutory authority.

The Supreme Court’s decision in Fischer v. United States rejecting the use of obstruction of legal proceedings against January 6th defendants will potentially impact hundreds of cases. For some, it may lead to dismissals or, in the cases with multiple charges, resentencings. One of those cases that will be impacted is the pending prosecution of former president Donald Trump who is facing four charges, including two obstruction counts. It was not clear if Special Counsel Jack Smith would yield to the decision or possibly take the dubious path laid out by Justice Ketanji Brown Jackson in her concurrence.

However, Smith tended to push the law to the breaking point to bag defendants. That was the case when his conviction of former Virginia Governor Robert F. McDonnell was unanimously reversed as overextending another law.

As I wrote previously after the decision, “It is doubtful that [Smith] will go quietly into the night after the Fischer decision.” In most cases, a prosecutor would go back and secure a superseding indictment in light of the loss of the obstruction claims. Those claims were central to the narrative of the government under the Trump indictment. However, I wrote that it “is not Smith’s style” to yield to precedent and that he would likely “take a not-so-subtle hint from Jackson in her concurrence.”

Jackson supported the majority in finding that the obstruction provision, Section 1512(c), was enacted after the Enron case to address the destruction of documents and records.

Section 1512(c)(1) prohibits corruptly obstructing an official proceeding by altering, destroying, mutilating, or concealing a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding. However, a second provision under subsection (c)(2) allowed for charges that would “otherwise” obstruct, influence, or impede an official proceeding. The Court held that the obstruction cases under Section 1512(c)(2) must be tied to impairing the integrity or availability of evidence.

However, in a single justice concurrence, she added a way that Smith and other prosecutors might still be able to shoehorn January 6th into a Section 1512 offense:

“That official proceeding [Congress’s certification of the Electoral College vote] plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.”

Once again, no other justice joined Jackson in the concurrence.

Right on cue, Smith revealed that he was going to do precisely what I feared in taking a position supported by a single justice. In his report, Smith wrote:

“Mr. Trump’s and his co-conspirators’ obstruction involved replacing valid elector certificates from the contested states with false ones they had manufactured-the Office anticipated the possibility of such a result in Fischer and confirmed that the evidence would prove Mr. Trump’s guilt beyond a reasonable doubt even under a narrow interpretation of Section 1512(c)(2).”

Just saying that a proceeding involves “certain records” is transparently artificial and forced. Even the submission of an alternative slate of electors is not the destruction of electors certified by the secretaries of state.

The federal law allows for challenges in Congress, which Democrats previously utilized without claims of insurrections or attacks on democracy. J6 Committee Chairman Bennie Thompson (D-Miss.), voted to challenge the certification of the 2004 results of President George W. Bush’s reelection; committee member Jamie Raskin (D-Md.) sought to challenge Trump’s certification in 2016. Both did so under the very law that Trump’s congressional supporters used in 2020. And Pelosi and Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) praised the challenge organized by then-Sen. Barbara Boxer (D-Calif.) in 2004.

Those challenges under the same loose theory could have been viewed as attempting to negate or destroy certifications from the states. It would have likely, in my view, result in another reversal. However, Smith is always about securing convictions more than sustaining appeals. That is why he filed the second case in D.C., where he was given the best possible judge for the prosecution, a judge viewed by many as predisposed against Trump.

In a sentencing hearing of a Jan. 6 rioter in 2022, Chutkan had said that the rioters “were there in fealty, in loyalty, to one man — not to the Constitution.” She added then, “[i]t’s a blind loyalty to one person who, by the way, remains free to this day.” That “one person” was then brought to her for trial by Smith.

So Smith was going to proceed on the theory of a single justice with the help of a favorable jury and a motivated judge. Little has changed with Smith since his unanimous reversal in the McDonnell case, which seems much of the reason that he was appointed.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”

This column also appeared on Fox.com

Category:

Tagged with:

Merchan’s Monster: Judge’s Attempt to Calm the Townspeople Fails Spectacularly in Trump Trial

By: Jonathan Turley | January 13, 2025

Below is my column in the New York Post on the statement by Acting Justice Juan Merchan in the sentencing of President-elect Donald Trump. Merchan’s effort to justify the handing of the case sounded like the second defense argument made in the hearing. It likely changed few minds in the court of public opinion.

Here is the column:

This week, the sentencing of President-Elect Donald Trump saw one of the most impassioned defense arguments given at such a hearing in years . . . from the judge himself. Acting Justice Juan Merchan admitted that the case was “unique and remarkable” but insisted that “once the courtroom doors were closed, the trial itself was no more special, unique, and extraordinary than the other 32 cases in this courthouse.”

If so, that is a chilling indictment of the entire New York court system. Merchan allowed a dead misdemeanor to be resuscitated by allowing Manhattan District Attorney Alvin Bragg to effectively prosecute declined federal offenses. He allowed a jury to convict Trump without any agreement, let alone unanimity, on what actually occurred in the case. Merchan ruled that the jury did not have to agree on why Trump committed an alleged offense in describing settlement costs as legal costs. Neither the defendant nor the public will ever know what the jury ultimately found in its verdict.

I once described this case as a legal Frankenstein: “It is the ultimate gravedigger charge, where Bragg unearthed a case from 2016 and, through a series of novel steps, is seeking to bring it back to life…Bragg is combining parts from both state and federal codes.”

Even liberal legal experts have denounced the case and Sen. John Fetterman (D-Pa.) recently called it total “b—s–t.”

Now, Merchan seemed to assure this Frankenstein case that he was just like any other creature of the court. It did not matter that he was stitched together from dead cases and zapped into life through lawfare.

Merchan knows that there is a fair chance this monstrosity will finally die on appeal, and he was making the case for his own conduct. The verdict, however, is likely to last far longer than the Trump verdict. It is a judgment against not just Merchan but the New York legal system, which allowed itself to be weaponized against political opponents.

In the Mary Shelley novel, Frankenstein says “I am thy creature: I ought to be thy Adam, but I am rather the fallen angel.”

Trump can now appeal the case as a whole. Prior appeals in the New York court system were unsuccessful, and hopes are low that the system will redeem itself. However, Trump can eventually escape the vortex of the New York court system in search of jurists willing to see beyond the rage and bring reason to this case.

Notably, prosecutor Joshua Steinglass cited Chief Justice John Roberts in his argument before Merchan, noting that Roberts recently chastised those who attack the courts. (Roberts just the night before joined liberal justices and Justice Amy Coney Barrett in refusing to stay the sentencing). Steinglass portrayed Trump as an existential threat to the rule of law.

Roberts, however, is everything that Merchan is not. You can disagree with him, but he has repeatedly ruled against his own preferred outcomes in cases, including rulings against President Trump and his campaign and Administration. For his part, Trump declined to criticize the court and declared that “This is a long way from finished and I respect the court’s opinion.”

Indeed it is. Merchan’s monster will now go on the road and work its way back to the Supreme Court. Outside of New York this freak attraction will likely be viewed as less thrilling than chilling.

The election had the feel of the townspeople coming to the castle in the movie. In this case, however, the townspeople were right about what they saw in the making of a creature that threatened their very existence. Lawfare is that monster. It threatens us all, even those who hate Trump and his supporters. Once released, it spreads panic among the public which can no longer rely on the guarantees of blind and fair justice. That includes businesses who view this case and the equally absurd civil case brought by New York Attorney General Letitia James as creating a dangerous and even lawless environment. Many are saying “but for the grace of God go I” in a system that allows for selective prosecution.

In the sentencing proceeding, Merchan was downplaying his hand in creating this Frankenstein. However, the case is the fallen angel of the legal system. While heralded in court by Bragg’s office as the triumph of legal process, it is in fact the rawest and most grotesque form of lawfare. Many will be blamed as the creators of this monster but few will escape that blame, including Merchan himself.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, June 18, 2024).

Category:

Tagged with:

With the Trump Sentencing, the Verdict is in . . . for the New York Legal System

By: Jonathan Turley | January 10, 2025

Below is my column at Fox.com on the sentencing of President-Elect Donald Trump. The conviction should be overturned on appeal. However, the most lasting judgment will be against the New York court system itself in allowing this travesty of justice to occur.

Here is the column:

With the sentencing of Donald Trump Friday, the final verdict on the New York criminal trial of the president-elect is in. The verdict is not the one that led to no jail or probation for the incoming president. Acting Justice Juan Merchan has brought down the gavel on the New York legal system as a whole.

Once considered the premier legal system in the country, figures like New York Attorney General Letitia James, Manhattan District Attorney Alvin Bragg, Justices Arthur F. Engoron and Juan Merchan have caused the system to be weaponized for political purposes. Trump will walk away from this trial and into the White House in less than two weeks, but the New York system will walk into infamy after this day.

The case has long been denounced by objective legal observers, including intense Trump critics, as a legal absurdity. Even CNN’s senior legal analyst Elie Honig denounced the case as legally flawed and unprecedented while Sen. John Fetterman, D-Pa., simply called it total “b—s–t.”

It is a case based on a non-crime. Bragg took a long-dead misdemeanor and zapped it back into life with a novel and unfounded theory. By using federal violations that were never charged, let alone tried, Bragg turned a misdemeanor into dozens of felonies and essentially tried Trump for federal offenses.

Merchan not only allowed those charges to be brought to trial but then added layers of reversible errors in the effort to bag Trump at any cost. For that, he was lionized by the liberal media and many New Yorkers. However, Trump still managed to pull in 3.6 million New York votes, or 42.7%, in the 2024 election. After all of the lawfare and every advantage (including a heavily biased media and a larger war chest), Vice President Kamala Harris lost hundreds of thousands of votes in 2024 in comparison to Joe Biden just four years earlier.

Many polls showed that the public saw the Manhattan criminal case for what it was: raw lawfare targeting a leading political opponent. The election itself felt like the largest verdict in history as citizens rejected the political, legal, and media establishments in one of our nation’s most historic elections.

The New York court system will now have a chance to redeem itself, but few are holding their breath. The appellate court has still not ruled on an appeal of Attorney General Lettia James’s equally absurd civil lawsuit against Trump. Despite judges expressing skepticism over Engoron’s use of a law to impose a grotesque $455 million in fines and interest, we are still waiting for a decision.

Most are waiting for this criminal case to escape the vortex of the New York court system. With this appeal, this peddler’s wagon of reversible errors will finally pull up in front of the Supreme Court itself.

With its ruling on Thursday night, the setting for a decision could not be better for Trump. The Supreme Court has again demonstrated that it has shown restraint and independence in these cases. In response to the ruling, Trump struck the perfect note Thursday night and declined to criticize the Court, stating that “This is a long way from finished and I respect the court’s opinion.”

The ultimate penalty on Friday morning from Judge Merchan reflects the lack of seriousness in the case. It was more inflated than the Goodyear blimp, pumped up by hot rage and rhetoric. The sentence was the pinprick that showed the massive void within this case.

The verdict is in. The New York legal system has rendered it against itself.

Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, June 18, 2024).

Category:

Tagged with:

Former Stripper Admits that She Lied About Gang Rape by Duke Lacrosse Players

By: Jonathan Turley | December 13, 2024

Almost twenty years ago, the country was outraged by allegations of an African-American stripper that she was hired and then gang raped by white Duke Lacrosse players. The story followed an all-too-familiar pattern. The media, professors, and pundits immediately treated the allegations as true and declared the crime as a manifestation of our racist society. Many demanded immediate suspensions of all of the students as the racial and class conflicts were emphasized in the media. As I wrote previously, Duke University joined the mob against its own students and discarded any semblance of due process or fairness. Now, the accuser Crystal Mangum has admitted that she made the whole thing up in an interview on the independent media outlet “Let’s Talk with Kat.” The problem is that little was likely learned in higher education from the experience.

The students found themselves in a nightmare as the media flash mob formed to call for their punishment. They were arrested and subject to the unethical and unprofessional treatment of former Durham County district attorney Mike Nifong. Nifong pandered to the press and the community in public speeches despite criticism from some of us that he was fueling the rage against the students despite serious questions over this account. He declared publicly:

“The information that I have does lead me to conclude that a rape did occur. The circumstances of the rape indicated a deep racial motivation for some of the things that were done. It makes a crime that is by its nature one of the most offensive and invasive even more so.”

From the outset, there were obvious problems with the account, including a lack of supporting forensic evidence that would ordinarily be found at the scene.

Nifong was later disbarred for his misconduct, including withholding exculpatory evidence. Even after the allegation was shown to be a hoax, former North Carolina Attorney General Roy Cooper took the easy way out and declined to charge Mangum despite her ruining the lives of these students. She was later arrested and convicted of murdering her boyfriend.

Now, Mangum is admitting, “I testified falsely against them by saying that they raped me when they didn’t, and that was wrong, and I betrayed the trust of a lot of other people who believed in me…[I] made up a story that wasn’t true because I wanted validation from people and not from God.”

It is heartening to see Mangum come to grips with what she did and ask for forgiveness. However, there remains a lack of such remorse from many in the press and higher education who helped lead this mob against these students. Years later, many continued to resist efforts to afford due process protections to those accused in higher education.

The media followed its usual pattern of dispensing with countervailing facts to fuel the racial elements or play up the class differences. Nancy Grace declared, “I’m so glad they didn’t miss a lacrosse game over a little thing like gang rape!”

Former prosecutor Wendy Murphy, who praised Nifong’s handling of the case, said publicly that “I never, ever met a false rape claim, by the way. My own statistics speak to the truth.”

Feminist and journalist Amanda Marcotte writes for publications such as Salon and Slate. She captured the blind rage even after ethics charges were raised against Nifong, stating:

“I’ve been sort of casually listening to CNN blaring throughout the waiting area and good f**king god is that channel pure evil. For awhile, I had to listen to how the poor dear lacrosse players at Duke are being persecuted just because they held someone down and f**ked her against her will—not rape, of course, because the charges have been thrown out. Can’t a few white boys sexually assault a black woman anymore without people getting all wound up about it? So unfair.”

Marcotte later deleted the statement and criticized Nifong.

The greatest unfairness to these students came not from such extreme voices but mainstream media, which showed little interest or comfort in exploring contradictions and gaps in the account.

As is often the case, the hoax was later revealed and there was a collective shrug from most in the media as we await the next cathartic case or controversy.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Crime, Law, Media, Political

Tagged with:

Justice Department Indicts Alleged Swatters of Turley, Members of Congress, and Others

By: Jonathan Turley | November 25, 2024

Yesterday, I was notified by the Justice Department confirming that a recent swatting indictment includes the person or persons responsible for my own swatting a year ago. One of the defendants, Thomasz Szabo, was arrested a couple weeks ago.

The indictment below charges two foreign nationals: Thomasz Szabo, 26, of Romania, and Nemanja Radovanovic, 21, of Serbia.

Szabo and Radovanovic are each charged with one count of conspiracy, 29 counts of threats and false information regarding explosives, and four counts of transmitting threats in interstate and foreign commerce.

Their alleged conspiracy began as early as December 2020. It continued through January 2024, using personal identifying information, including home addresses, to falsely report emergencies to provoke a police response at the victim’s home. According to the Justice Department, they used various monikers to communicate. Szabo used “Jonah,” “Jonah Goldberg,” “Plank,” “Rambler,” “War Lord,” “Shovel,” “Cypher,” “Kollectivist,” “Mortenberg Shekelstorms,” and “NotThuggin2”. Radovanovic used “XBD31,” “XDR,” “Angus,” “Thuggin,” “Thug Hunter,” “NotThuggin,” “DCL,” and “AOD.”

The indictment alleges that their crimes encompassed 40 private victims and 61 official victims, including members of Congress, cabinet-level executive branch officials, and senior federal law enforcement officials. It also included four businesses, four religious institutions, and one victim university.

Assistant U.S. Attorney Conor Mulroe is prosecuting the case. Under the Crime Victims Rights Act, 18 U.S.C. 3771 (1), the indictment triggers ten rights for me and the other alleged victims, including the right to be heard at a hearing involving any plea, sentencing, or parole proceeding. I was given my own Victim Identification Number (VIN) and Personal Identification Number (PIN) under the CVRA for future communications.

I am grateful to the Justice Department and these cooperating U.S. and foreign offices for their work in finding the alleged culprits who swatted my home between Christmas and New Year’s in 2023.

Whatever the role politics may have played, or our current divisions, swatting constitutes a very serious crime that can result in lethal accidents and trauma for victims. It also pulls law enforcement resources away from real crimes. In my case, five or six officers were needlessly pulled from their other duties to respond to the call.

For some, these stories become irresistible opportunities to vent against the victims or even bizarre attacks on conservative legal theory. The liberal gotcha site, Above the Law, covered my swatting with the usual ad hominem attacks while adding a truly unhinged spin to the story. Senior Editor Joe Patrice (who has defended “predominantly liberal faculties” and not hiring conservative or libertarian law professors) insisted that swatting is somehow the fault of gun owners, Second Amendment advocates, and “edgy” police:

“Swatting is a byproduct of a nation awash in more and more powerful weapons and more and more edgy cops. And that makes these false police reports regrettably a manifestation of our age of failing to confront the disconnect between the text and history of the Second Amendment and the lazy ahistorical interpretation of this Supreme Court.”

Prosecutors notably did not include the conservative justices as co-conspirators with Szabo and Radovanovic.

This indictment is a valuable addition to deterring a crime that has become all too common. The fact that this investigation stretched to Hungary and Romania showed the extraordinary effort needed to make these arrests. The arrests are the result of an investigation that involved a global effort, including the U.S. Secret Service Washington Field Office and Criminal Investigative Division, the FBI’s Washington Field Office and Minneapolis Field Office, the U.S. Capitol Police, the U.S. Secret Service’s Bucharest Resident Office, Miami Field Office, Syracuse Resident Office, Springfield Resident Office, the FBI’s Legat Office in Bucharest and the U.S. Attorney’s Offices for the Western District of Washington, the District of South Dakota, the Middle District of Florida, the Southern District of Florida, the Southern District of Illinois, and the Northern District of New York.

As more such cases are prosecuted, it will hopefully shatter the sense of anonymity and impunity of such culprits. Once again, I am very thankful for the effort of all of these agencies in bringing this case.

Here is the indictment: radovanovicszabo_indictment_24-cr-386.pdf

*Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “**The Indispensable Right: Free Speech in an Age of Rage*.”

Category:

11.20.2024 Letter From Rep. Barry Loudermilk to USCP Chief of Police Manger.pdf

Tagged with:

Report: The Officer Who Killed Ashli Babbitt Had a Long History of Disciplinary and Training Problems

By: Jonathan Turley | November 21, 2024

I have previously written about the dubious investigations of the shooting of Ashli Babbitt on Jan. 6th and the alleged violation of the standards for the use of lethal force by the officer who shot her. I strongly disagreed with the findings of investigations by the Capitol Police and the Justice Department in clearing Captain Michael Byrd, who shot the unarmed protester. Now, Just the News has an alarming report of the record of Byrd that only magnifies these concerns.

Liberal politicians and pundits often refer to multiple deaths from the Jan. 6th riot. In reality, only one person died that day, and that was Babbitt, who was shot while trying to climb through a window. However, the media lionized Byrd and portrayed the killing of the unarmed Babbitt as clearly justified. That is in sharp contrast to the approach that the media has taken in other shootings by law enforcement. An unjustified killing by police on that day was inconsistent with the public narrative pushed by the pundits and the press.

As I have previously written, what occurred on Jan. 6th was a disgrace. However, it was a riot, not an insurrection. (It was certainly not an act of terrorism as claimed by some Democratic politicians). A protest at the Capitol resulted in a complete breakdown of the inadequate security precautions, a failure that House Speaker Nancy Pelosi privately admitted but only recently was disclosed. The failure of Pelosi and others to properly prepare for the protest, despite the offer of President Donald Trump of 10,000 National Guard troops, does not excuse the conduct of the rioters who attacked the Capitol, interrupted the constitutional process, and committed property damage.

Babbitt was one of those rioters. She was wrong in her actions, but the penalty for breaking a window and unauthorized entry is not death in this country. I previously spoke with her mother, Micki Witthoeft, and her husband, Aaron Babbitt, about their continuing effort to expose what occurred that day.

The new report confirms what many of us had previously heard about the Byrd controversy.

Babbitt, 35, was an Air Force veteran and Trump supporter who participated in the riot three years ago. She was clearly committing criminal acts of trespass, property damage, and other offenses. However, the question is whether an officer is justified in shooting a protester when he admits that he did not see any weapon before discharging his weapon.

Just to recap what we previously discussed in the earlier column:

When protesters rushed to the House chamber, police barricaded the chamber’s doors; Capitol Police were on both sides, with officers standing directly behind Babbitt. Babbitt and others began to force their way through, and Babbitt started to climb through a broken window. That is when Byrd killed her.

At the time, some of us familiar with the rules governing police use of force raised concerns over the shooting. Those concerns were heightened by the DOJ’s bizarre review and report, which stated the governing standards but then seemed to brush them aside to clear Byrd.

The DOJ report did not read like any post-shooting review I have read as a criminal defense attorney or law professor. The DOJ statement notably does not say that the shooting was justified. Instead, it stressed that “prosecutors would have to prove not only that the officer used force that was constitutionally unreasonable, but that the officer did so ‘willfully.’” It seemed simply to shrug and say that the DOJ did not believe it could prove “a bad purpose to disregard the law” and that “evidence that an officer acted out of fear, mistake, panic, misperception, negligence, or even poor judgment cannot establish the high level of intent.”

While the Supreme Court, in cases such as Graham v. Connor, has said that courts must consider “the facts and circumstances of each particular case,” it has emphasized that lethal force must be used only against someone who is “an immediate threat to the safety of the officers or others, and … is actively resisting arrest or attempting to evade arrest by flight.” Particularly with armed assailants, the standard governing “imminent harm” recognizes that these decisions must often be made in the most chaotic and brief encounters.

Under these standards, police officers should not shoot unarmed suspects or rioters without a clear threat to themselves or fellow officers. That even applies to armed suspects who fail to obey orders. Indeed, Huntsville police officer William “Ben” Darby was convicted of killing a suicidal man holding a gun to his head. Despite being cleared by a police review board, Darby was prosecuted, found guilty, and sentenced to 25 years in prison, even though Darby said he feared for the safety of himself and fellow officers. Yet law professors and experts who have praised such prosecutions in the past have been conspicuously silent over the shooting of an unarmed woman who had officers in front of and behind her on Jan. 6.

Byrd went public soon after the Capitol Police declared that “no further action will be taken” in the case. He then demolished the two official reviews that cleared him.

Byrd described how he was “trapped” with other officers as “the chants got louder” with what “sounded like hundreds of people outside of that door.” He said he yelled for all of the protesters to stop: “I tried to wait as long as I could. I hoped and prayed no one tried to enter through those doors. But their failure to comply required me to take the appropriate action to save the lives of members of Congress and myself and my fellow officers.”

Byrd could just as well have hit the officers behind Babbitt, who was shot while struggling to squeeze through the window.

Of all of the lines from Byrd, this one stands out: “I could not fully see her hands or what was in the backpack or what the intentions are.” So, Byrd admitted he did not see a weapon or an immediate threat from Babbitt beyond her trying to enter through the window. Nevertheless, Byrd boasted, “I know that day I saved countless lives.” He ignored that Babbitt was the one person killed during the riot. (Two protesters died of natural causes and a third from an amphetamine overdose; one police officer died the next day from natural causes, and four officers have committed suicide since then.) No other officers facing similar threats shot anyone in any other part of the Capitol, even those who were attacked by rioters armed with clubs or other objects.

The new report confirms prior accounts that Byrd had prior disciplinary and training issues. According to Just the News, they included “a failed shotgun qualification test, a failed FBI background check for a weapon’s purchase, a 33-day suspension for a lost weapon and referral to Maryland state prosecutors for firing his gun at a stolen car fleeing his neighborhood.”

Given this history and the shooting of Babbitt, Rep. Barry Loudermilk, R-Ga., the chair of the House Administration Oversight Subcommittee investigation, wrote to express concern over Byrd’s promotion to captain. Those incidents included Byrd firing at a car and allegedly misrepresenting the incident in claiming that “he fired at a vehicle trying to strike him when the evidence fellow officers found at the scene indicated he shot at the vehicle after it had already passed him and no longer posed a threat.” The letter states the Office of Professional Responsibility found that the evidence did not support his claim and “OPR concluded that the evidence suggests Byrd ‘discharged his service weapon at the vans after they passed him by.’”

The concern is that the political environment — and powerful interests in Congress — demanded that Byrd be cleared. As discussed in my new book, “The Indispensable Right,” the Justice Department had publicly pledged to bring “shock and awe” in prosecuting anyone associated with the riot. Finding that the only person killed that day was an unjustified shooting would not exactly fit with the narrative.

The incidents also include allegations of improper handling of his weapon, including reports that Byrd left his service weapon in a public bathroom in the Capitol Visitor Center complex used by tourists and visitors.

The Babbitt family has continued to fight to force the facts into the open and has filed a civil case. A trial is now set for 2026.

Here is his letter detailing the disciplinary problems of Captain Byrd:

*Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “**The Indispensable Right: Free Speech in an Age of Rage*.”

Category:

Tagged with:

The Layaway Presidency: How Alvin Bragg Would Create a New Constitutional Creature

By: Jonathan Turley | November 20, 2024

Below is my column in the New York Post on the effort of Alvin Bragg to suspend the criminal case against President-Elect Donald Trump for almost five years. It would be a terrible choice for the court and for the country.

Here is the column:

Manhattan District Attorney Alvin Bragg pushed Tuesday to create a new constitutional creature: the layaway president. It was once common for stores to hold expensive items that you really wanted but could not make the payment. So, they were tagged and kept on the shelf until you were ready to redeem your item.

For Bragg, that leaves Donald Trump tagged until 2029.

In a filing before Manhattan Justice Juan Merchan, Bragg suggested that the court should stay the pending criminal case and defer any sentencing “until after the end of defendant’s upcoming presidential term.” That would allow a city prosecutor to put a leash on a sitting president for four years. Trump would govern by the grace of this local judge and district attorney. In the meantime, pundits and politicians could portray the president as free on a type of work release program.

The suggestion is appalling to most of the people in the country, including the majority of voters who voted for Trump. Vice President Kamala Harris and Democrats ran on this and other cases in the election. The result was arguably the largest jury decision in history.

That being said, I do not believe that the mere election of a president negates jury verdicts on 34 criminal counts. But ample reasons exist to overturn those verdicts or to dismiss this case. For example, after the verdict, the Supreme Court rendered its immunity decision barring the use of certain evidence against a president. Some of the evidence used in the Manhattan case likely fell within one of the protected categories. The prosecutors not only elicited testimony from Trump aides in the White House but then doubled down on the significance of that evidence in their closing arguments. Merchan could declare that the court cannot rule out the impact of such testimony on the final verdict.

Even if Merchan, as expected, does not dismiss the case on the basis for the immunity decision, the trial was rife with reversible error. This was a raw exercise of lawfare, and Merchan did little to ensure fairness toward the defendant. Yet none of those errors can be likely addressed until Merchan reaches final decisions on the motion to dismiss as well as the sentencing question.

While that will mean that Trump could, upon possible sentencing, formally become a convicted felon, the matter can then be finally pried out of the hands of Merchan and taken to higher courts for review. The worst possible option is the one suggested by Bragg, who would adopt the popular persona of Trump’s turnkey.

The President would be seen by many as governing on a type of conditional status from one of the most politically compromised prosecutors in the country. For Bragg and other Trump opponents, that may be far more satisfying than a sentencing now given the unlikelihood of any jail component.

After the years and millions spent on the case, it would be the ultimate buzz kill to have Trump sentenced to some fine or other non-carceral penalty. Many Democrats want to have Trump govern with an asterisk of a “President pending sentencing.” Instead, Trump would govern with the clock ticking toward a sentencing date.

It is a dangerous precedent. Such pending sentences can have a coercive impact on a president in dealing with given officials, including a state governor who might be willing to pardon a president.

Consider the effort of the governor of New York in restoring the lucrative state and local tax, or SALT, deductions. There is no reason to believe that Trump would succumb to such leverage (and he has already indicated that he would consider the change).

However, any decision on policies like SALT would be the subject of speculation of whether a reduction in taxation was made in the hope of a reduction in incarceration.

Critics would suggest that New York is yanking on the leash to achieve policy advantages. This is the same judge and prosecutor who gagged the leading candidate for the presidency in discussing aspects of the case in the months leading up to the election. Now, they would allow him to govern pending their own suspended decisions on his future.

The Trump case was always a thrill kill for Bragg. Under Bragg’s proposal, his supporters would prolong that thrill for four more years. The cost, however, would be devastating for the country.

This country needs a president, not a president on layaway from the Manhattan District Attorney.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Crime, Law, Media, Political

Tagged with:

The Second Resistance Movement: Why the Campaign Against Trump This Time is Different

By: Jonathan Turley | November 12, 2024

Below is my column in The Hill on the growing calls for an organized resistance to the Trump Administration by Democratic governors and prosecutors. They may find, however, that the resistance movement this time around will be facing significant legal and political headwinds.

Here is the column:

The single most common principle of recovery programs is that the first step is to admit that you have a problem. That first step continues to elude the politicians and pundits who unsuccessfully pushed lawfare and panic politics for years. That includes prosecutors like New York Attorney General Letitia James and politicians like Illinois Gov. J.B. Pritzker, who affirmed this week that they will be redoubling, not reconsidering, their past positions.

For its part, The Washington Post quickly posted an editorial titled “The second resistance to Trump must start now.” They may, however, find the resistance more challenging both politically and legally this time around.

It is important to note at the outset that there is no reason Democratic activists should abandon their values just because they lost this election. Our system is strengthened by passionate and active advocacy. Rather, it is the collective fury and delirium of the post-election protests that was so disconcerting. Pundits lashed out at the majority of voters, insisting that the election established that half of the nation is composed of racists, misogynists or domination addicts who long to submit to tyranny.

Others blamed free speech and the fact that social media allows “disinformation” to be read by ignorant voters. In other words, the problem could not possibly be themselves. It was, rather, the public, which refused to listen.

This woman has a message for Trump haters. pic.twitter.com/5vYfeJOgQ1
— The Disrespected Trucker (@DisrespectedThe) November 11, 2024

I don’t think I could’ve said this any better. My friend Jenny spitting facts early in the morning. It’s time for the political elite in this country to realize America told you exactly how they felt on election day. This goes to the media as well. America is done with the… pic.twitter.com/v73sK7gnkF
— Jean Romanik (@JeanRomanik) November 11, 2024

That does not bode well for the Democratic Party. As someone raised in a liberal politically active family in Chicago, I had hoped for greater introspection after this election blowout. Ordinarily, recovery can begin with “a terrible experience” when someone hits rock bottom. After a crushing electoral defeat and the loss of the White House and likely both houses of Congress, one would think that Democrats would be ready for that first step to recovery. However, those hoping for a new leaf on the left do not understand the true addictive hold of rage.

In my recent book, “The Indispensable Right: Free Speech in an Age of Rage,” I explore rage and our long history of rage politics. There is a certain release that comes with rage in allowing people to do and say things that you would never do or say. People rarely admit it, but they like it. It is the ultimate high produced by the lowest form of political discourse.

Over the course of the last eight years, the U.S. has become a nation of rage addicts. For months, Democratic leaders denounced Donald Trump and his supporters as fascists and neo-Nazis. President Joe Biden, Vice President Kamala Harris and others suggested that democracy itself was about to die unless Democrats were kept in power.

Just before the election, New York Gov. Kathy Hochul called those voting for Trump “anti-American.” By Hochul’s measure, over half of the American electorate is now “anti-American.”

James is the face of lawfare. She may have done more to reelect Trump than anyone other than the president himself. She ran on nailing Trump on something, anything. In New York, she was joined by Manhattan District Attorney Alvin Bragg in this ill-conceived effort. They fulfilled the narrative of a weaponized legal system. Every new legal action seemed to produce another surge in polling for Trump. Yet there James was, soon after the election, with another press conference promising again to unleash the powers of her office to stop Trump’s policies.

Then there was Pritzker, doing the community theater version of “The Avengers” and declaring, “You come for my people, you come through me.” New Jersey Gov. Phil Murphy (D) added that he too will “fight to the death” against Trump’s agenda. Rather than lower the rhetoric, these rage-addicts ran out for another hit.

Our prior periods of rage politics were largely ended by the public in major election shifts like the one this month. Things, however, are different this time around both politically and legally. The problem for the resistance is the very democracy that they claimed to be saving. Democrats lost after opposing policies supported by an astonishing share of the public at a time of deep political division. That effort included opposing voter ID laws favored by 84 percent of the public, among other things. They are now committed to opposing policies central to this election blowout, including deportations of illegal immigrants, which is favored in some polls by two-thirds of Americans.

Likewise, Democrats have already doubled down on attacks on free speech, including blaming their loss on the absence of sufficient censorship. On MSNBC, host Mika Brzezinski blamed the loss in part on “massive disinformation.” Yet, according to some polls, free speech ranked as high as second among issues on Election Day.

According to CNN, Trump’s performance was the best among young people (18-29 years old) in 20 years, the best among Black voters in 48 years, and the best among Hispanic voters in more than 50 years. Harris actually lost a bit of support with women, and Trump won handily among some groups of women.

None of that seems to matter this time. We have an alliance of political media and academic interests wholly untethered to the views of most of the public. Yet, with both houses of Congress under Republican control, the investigations and impeachment efforts that hounded Trump throughout his first term will be less of a threat in his second term. For that reason, the center of gravity of the “second resistance” will shift to Democratic prosecutors like James, Bragg and Fulton County District Attorney Fani Willis, who was just reelected. Various Democratic governors are also pledging to thwart Trump’s policies despite the results of the election.

The “second resistance” will try to use state power to oppose the very issues and policies that led to this historic political shift. That means that there will be a legal shift in the focus of litigation to inherent federal powers versus state powers. That battle will favor the Trump administration. In fairness to these Democratic politicians, they are certainly free to go to the courts, as Republicans did under Biden to argue for limitations on federal powers. But the promise of California Gov. Gavin Newsom to “Trump-proof” the state is easier to make rhetorically than it will be to keep legally.

Indeed, Trump will be able to cite a curious ally in this fight: Barack Obama. It was Obama who successfully swatted down state efforts to pursue their own policies and programs on immigration enforcement. Obama insisted that state laws were preempted in the area and the Supreme Court largely agreed in its 2012 decision in Arizona v. U.S.

Congress may even seek to tie the receipt of federal funds to states cooperating with federal mandates. For this reason, Democrats, who campaigned on the promise to end the filibuster for the good of democracy, suddenly became firm believers in that Senate rule right around 2:30 a.m. last Wednesday.

As the majority of the country walks away from the party shaking their heads, many activists are left only with their rage. Instead of reappraising the years of far-left orthodoxy and intolerance, some are calling to tear down the system or take drastic individual actions, including for women to break up with their boyfriends and husbands or to cut off their hair.

They will actually keep their rage and dump their relationships. Now that really is an addiction.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Tagged with:

Behold The Flying Dutchman: Trump Prosecutors Find Themselves on Listless Ships Without a Port of Call

By: Jonathan Turley | November 8, 2024

Below is my column in The Hill on the collapse of the lawfare campaigns against Trump. The first to go will likely be the two cases by Special Counsel Jack Smith, who became a lame-duck prosecutor at around 2:30 am last Wednesday. We are also waiting for what is likely to be a reduction or even a rejection of the Trump civil case by Attorney General Letitia James. While Democratic prosecutors are likely to continue, if not ramp up, their lawfare efforts, Trump will enter office with a fraction of the existing legal threats that have dogged him for years. For prosecutors, they are left like the ancient mariner:

Day after day, day after day,
We stuck, nor breath nor motion;
As idle as a painted ship
Upon a painted ocean.

Here is the column:

Nearly two years ago, I wrote that Democratic prosecutors’ lawfare campaign against Donald Trump would make the 2024 election the single largest jury decision in history. Now that the verdict is in, the question is whether prosecutors will continue their unrelenting campaign against the president-elect and his companies.

The answer is that it may not matter.

The election reflected a certain gag sensation for a public fed a relentless diet of panic and identity politics for eight years. The 2024 election will come to be viewed as one of the biggest political and cultural shifts in our history. It was the mainstream-media-versus-new media election; the Rogan-versus-Oprah election; the establishment-versus-a-disassociated-electorate election.

It was also a thorough rejection of lawfare. One of the things most frustrating for Trump’s opponents was that every trial or hearing seemed to give Trump a boost in the polls. As cases piled up in Washington, New York, Florida and Georgia, the effort seemed to move more toward political acclamation than isolation. These cases are now legal versions of the Flying Dutchman — ships destined to sail endlessly but never make port.

If there is a single captain of that hapless crew, it is Special Counsel Jack Smith. For more than a year, Smith sought to secure a verdict in one of his two cases in Washington and Florida before the election. His urgency was seemingly shared by Judge Tanya Chutkan in Washington, but by few other judges or justices.

Around 2 am, Smith became a lame-duck prosecutor. Trump ran on ending his prosecutions and can cite a political mandate for it. Certainly, had he lost, the other side would be claiming a mandate for these prosecutions.

Trump’s new attorney general could remove Smith and order the termination of his continued prosecution. That is less of a problem in Florida, where a federal judge had already tossed out the prosecution of the classified documents case, which some of us saw as the greatest threat against Trump.

In Washington, Chutkan, who proved both motivated and active in pushing forward the election interference case, could complicate matters. Under federal rules, it is up to Chutkan to order any dismissal.

In the case of former national security adviser Michael Flynn, Judge Emmet Sullivan resisted granting the dismissal sought by the Justice Department — a record that I criticized as both unusual and unwarranted.

Chutkan could run the incoming Trump administration around on any dismissal, but in the end, it should succeed in ending Smith’s ill-considered indictment. In reality, Smith was not only losing the Florida case but was likely to be reversed again in Washington due to his refusal to make sufficient changes in his indictment of Trump after the recent immunity decision by the Supreme Court.

Smith could make one last push to damage Trump in the period before the inauguration by pushing for an immunity decision from Chutkan. He would again likely find a supportive ally in Chutkan.

However, in the end, this would do little to change the fact that the Flying Dutchman will soon be without a crew or port of call.

One of the most immediate cases to resume is the prosecution in Manhattan by District Attorney Alvin Bragg. Many, including commentators like CNN’s senior legal analyst Elie Honig, have denounced that case as legally flawed and obviously politically motivated.

Judge Juan Merchan is scheduled to rule on the immunity issue by Nov. 11 and to hold a possible sentencing on Nov. 26. Merchan has shown a pronounced bias against Trump in the past, and his counsel is likely anticipating a continuation of this pattern.

Merchan could sentence Trump to jail. However, such an abusive sentencing, even a brief one, would likely trigger an expedited appeal and would likely be stayed. Trump cannot pardon himself in a state case, but the case itself is a target-rich environment of arguable legal errors that could collapse on appeal.

Another case in New York is likely to move forward now. There is a pending appeal on the massive civil case against Trump brought by New York Attorney General Letitia James. For many, James is the very face of lawfare as a prosecutor who ran on getting Trump on something, anything.

She ultimately secured another openly biased judge in Justice Arthur Engoron, who imposed an absurd, grotesque $455 million in fines and interest against Trump and his corporation. Notably, some of the judges on the appellate panel seemed to agree with that assessment, questioning not just the amount but the very use of this law in a case where there was no victim and no one lost a single dollar due to the fraud alleged.

My assumption is that the opinion is already written, held back only because of the election. It could now be issued and constitute a major change in the case. Whatever is left of that judgment, if anything, would then certainly be appealed.

Then there is the roaring dumpster fire in Georgia. An appellate court there will decide whether District Attorney Fani Willis and her office can continue prosecuting the case. If they are forced off the case, a new prosecutor must review the matter. While some criminal allegations against defendants can be established, the alleged racketeering conspiracy against Trump is legally flawed and likely to fail on appeal.

Trump will also continue to appeal civil cases such as the E. Jean Carroll case, which will linger long past the election.

Trump will not be the only defendant to see substantial changes on January 20, 2025. Trump has pledged to pardon those prosecuted over the Jan. 6, 2021 Capitol riot. The public elected him despite that pledge and over the opposition of Democrats. That will affect hundreds and may come in the form of a mix of pardons and commutations, depending on the underlying charges.

One lingering question will be whether those who supported this lawfare will be deterred in the future. The thrill-kill politics practiced by figures like James proved costly in this election. Polls showed that many citizens have lost trust in the FBI and now view the criminal law process as being politicized in places like New York.

The next few weeks will determine whether Democratic leaders are ready for a new course in ending the lawfare.

President Biden could pardon Trump. It would be a poison-pill pardon. Trump does not need a pardon as the incoming president, but Biden could take the matter off the table by treating him as presumptively guilty. He could not only claim to have taken the higher ground (even though he ran on and promoted the prosecutions of Trump as legitimate) but use it as cover for pardoning his own son.

New York Gov. Kathy Hochul (D) could also move to pardon Trump on the New York charges. Hochul was widely criticized for calling Trump supporters (now the majority of voters in the nation) “un-American.” She could seek to make amends with a pardon.

In the end, Trump read the jury correctly. Once the lawfare was unleashed, he focused on putting his case to the public and walked away with a clear majority decision. It is unlikely that this will end all of his lawfare battles, but it may effectively end the war.

Jonathan Turley is a Fox News Media contributor and the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster, 2024).

Category:

Tagged with:

The Thrill is Gone: Will the Prosecutorial Campaigns Collapse with the Political Campaigns Against Trump?

By: Jonathan Turley | November 6, 2024

Below is my column in the New York Post on the developments in the pending Trump cases. I previously wrote that, if Trump prevailed in this election, it was likely that Special Counsel Jack Smith would “not see a jury in either of his cases.” This morning, Smith is reportedly in discussions on the possible dropping of his two federal cases against the president-elect. The prosecutorial campaigns appear to be collapsing with the political campaigns against Trump.

Here is the column:

After years of thrill-kill prosecutions, the thrill is gone for lawfare warriors. Election Day’s greatest losers may be special counsel Jack Smith, New York Attorney General Letitia James and Manhattan District Attorney Alvin Bragg. Donald Trump’s victory was the largest jury verdict that some of us anticipated for years of unrelenting weaponization of the legal system.

Smith’s prosecutions ended with the 270th Electoral College vote secured around 2 a.m. Wednesday. His unrelenting efforts to convict Trump and then, when prevented from holding a trial, to release damaging material before the election have collapsed with the blue wall in the Midwest. Trump has said he plans to fire Smith on Day 1. That means the end of both the January 6 and the classified documents cases. That leaves James and Bragg as residue of long forgotten lawfare battles, but even their Trump’s prospects look good.

James was able to secure a fellow lawfare warrior in Justice Arthur Engoron, who imposed a grotesque $455 million in fines and interest. That ruling is pending an appeal that is expected to be a partial or even total victory for Trump. Unlike Engoron, the appellate judges expressed great skepticism in September over the size of the penalty and even the use of this law. Trump faced half a billion dollars in penalty in a case where no one lost a dime, and the alleged victim banks wanted more business with Trump and his company.

Separately, there is a hearing scheduled in front of Judge Juan Merchan for Nov. 11 on the “hush money” case involving Stormy Daniels, and a possible sentencing on Nov. 26. If Merchan seeks to jail Trump, it is unlikely to be carried out, as Trump appeals the case and the many alleged errors committed by the judge. Merchan made an utter mess of a case that should never have been filed, let alone tried. Even commentators like CNN’s senior legal analyst, Elie Honig, have denounced the case as selective prosecution and unfounded. The case should result in a conditional discharge with no jail time if Merchan can resist the temptation to unjustly punish Trump, a level of restraint that has largely proven difficult for him in the case.

Merchan created layers of appealable errors in the case. Putting those alleged errors aside, any sentencing to jail would create its own constitutional conflict with Trump’s performance of his federal duties. The question is whether the election will bring a moment of sobriety for New Yorkers who have spent years in a full rage-driven celebration of lawfare.

While Trump did not prevail in New York, he came closer than any Republican in decades. After this steady diet of politicized prosecutions in New York, Trump secured 44.3% of the vote, while Harris received 55.7%. In 2020, the margin was 23 points.

It is doubtful that the election will completely kill the appetite for lawfare in New York. As I wrote in my recent book, “The Indispensable Right: Free Speech in an Age of Rage,” “rage is liberating, even addictive. It allows us to say and do things that we would ordinarily avoid, even denounce in others.” What people do not want to admit that is that they like the rage.

Rage addicts will continue to push James and Bragg to continue these unhinged campaigns. It is not prosecutorial — it is recreational. We can only hope that James and Bragg feel a twinge of humility when their cases fall apart along with the Kamala Harris campaign. And Merchan has the opportunity to use this brief sobering moment and issue a conditional discharge without home or actual confinement. He can take judicial notice of Trump’s election as our next president and end this circus in Manhattan.

Instead of listening to the braying mob, he can act as a judge and tell New Yorkers, in the immortal words of B.B. King:

“The thrill is gone
It’s gone away for good
All the thrill is gone
Baby, it’s gone away for good

…
I’m free from your spell
And now that it’s all over
All that I can do is wish you well.”

Jonathan Turley is a Fox News Media contributor and the Shapiro professor of public interest law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Tagged with:

No, the Trump Comment on Cheney Was Not a Crime

By: Jonathan Turley | November 4, 2024

Yesterday, Arizona Attorney General Kris Mayes became the latest Democratic prosecutor to suggest a possible criminal charge against former President Donald Trump. Mayes suggested that Trump’s controversial statement on Liz Cheney going to war could constitute a criminal threat. It is absurd and Mayes knows that any such charge would collapse before any remotely objective trial judge.

The promise of a criminal investigation by Mayes may hold a type of thrill-kill enticement for voters, but it would constitute a major assault on free speech in criminalizing political rhetoric.

I have often criticized Trump for his rhetoric and particularly his personal attacks on opponents and critics. However, the question is not whether you like the Cheney comment but whether there would be any meaningful limits on criminalizing political speech.

Critics charged that some media outlets were accused of misrepresenting the comments by cutting off part of what Trump said. Drudge Report ran a banner reading “TRUMP CALLS FOR CHENEY’S EXECUTION.” It then linked to the partial quotation on MSNBC and CNN:

“I don’t blame him for sticking with his daughter, but his daughter is a very dumb individual. Very dumb, she’s a radical war hawk. Let’s put her with a rifle standing there with nine barrels shooting at her, OK? Let’s see how she feels about it. You know, when the guns are trained on her face.”

However, they cut off the lines that followed. Here is the whole quote with the removed lines in bold:

“I don’t blame him for sticking with his daughter, but his daughter is a very dumb individual. Very dumb, she’s a radical war hawk. Let’s put her with a rifle standing there with nine barrels shooting at her, OK. Let’s see how she feels about it, you know, when the guns are trained on her face. You know, they’re all war hawks when they’re sitting in Washington in a nice building saying, oh, gee, we’ll, let’s send — let’s send 10,000 troops right into the mouth of the enemy.”

The quote is clearly a reference to Cheney going to war and how she would feel about it.

The usual suspects ran to X to decry a threat of violence, including Harvard Professor Laurence Tribe. Tribe previously called for Trump to be charged with the attempted murder of former Vice President Mike Pence. Even though no prosecutor has ever suggested such a charge, Tribe assured CNN that the crime was already established “without any doubt, beyond a reasonable doubt, beyond any doubt.” Tribe also previously declared that there was evidence supporting criminal charges of witness tampering, criminal election violations, Logan Act violations, extortion, espionage, attempted murder, and treason by Trump or his family.

Once again, I do not like the tenor or the name-calling. However, it is most clearly not a criminal threat.

What is most striking about Mayes’s promise is that no competent prosecutor would believe that such a political statement could constitute a crime. As I discuss in my book, “The Indispensable Right: Free Speech in an Age of Rage,” people do not like to admit it, but they like the rage. It is addictive and contagious, even for prosecutors. We have been here before with Trump. After the January 6th riot, there was an overwhelming consensus that Trump could be charged with incitement. After the riot, District of Columbia Attorney General Karl Racine was widely praised when he announced that he was considering arresting Trump, Donald Trump Jr., Rudy Giuliani, and U.S. Rep. Mo Brooks and charging them with incitement. So what happened to that prosecution? The failure of Racine to charge Trump was not due to any affection or loyalty to the former president. It was due to the paucity of direct evidence of a crime that would hold up in court. Supporters of this theory also often cut off the quote before Trump told his followers to protest “peacefully.”

Mayes will also likely drop the matter in time with no action. The important thing was to convey to Democratic voters a desire to prosecute Trump. It is now the bona fides of every Democratic prosecutor.

Even under Counterman v. Colorado, the Supreme Court ruled that criminal threats must be based on a showing of a culpable mental state. It cannot be based merely on a claim that words are objectively threatening. At a minimum, it requires the person to recklessly disregard a substantial risk that his words could be perceived as threatening. In so holding, the Court sought to offer “‘breathing space’ for protected speech.”

The need for such breathing space is even more significant in the context of a presidential campaign. For example, after his controversial garbage comment, Biden was accused of wanting to drown Trump. He has previously spoken about beating up Trump. None of that could be reasonably viewed as actual threats.

Even some figures on the left called out the media for misrepresenting the statement. The Young Turks’ Cenk Uygur wrote “Donald Trump did not call for the execution of Liz Cheney. That is a bald-faced lie. He was making a point about how she is a chickenhawk. But also, Trump shouldn’t talk about guns being ‘trained on her face,’ especially in a time where we’re worried about political violence.”

Vox correspondent Zack Beauchamp added his objections: “Folks, Trump didn’t threaten to execute Liz Cheney. He actually was calling her a chickenhawk, something liberals said about her for ages. Look at the context — Trump is talking about giving her a weapon. Typically, people put in front of firing squads aren’t armed.”

Political analyst Jonah Goldberg retracted his comments on CNN and now admits that there was no threat by Trump.

The threat from Mayes constitutes political pandering of the worst kind. Suggesting another round of lawfare just days before the election is a disservice to her office and the citizens of Arizona.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

N.B.: Here is the statute:

13-1202. Threatening or intimidating; classification

A. A person commits threatening or intimidating if the person threatens or intimidates by word or conduct:

1. To cause physical injury to another person or serious damage to the property of another; or

2. To cause, or in reckless disregard to causing, serious public inconvenience including, but not limited to, evacuation of a building, place of assembly or transportation facility; or

3. To cause physical injury to another person or damage to the property of another in order to promote, further or assist in the interests of or to cause, induce or solicit another person to participate in a criminal street gang, a criminal syndicate or a racketeering enterprise.

B. Threatening or intimidating pursuant to subsection A, paragraph 1 or 2 is a class 1 misdemeanor, except that it is a class 6 felony if:

1. The offense is committed in retaliation for a victim’s either reporting criminal activity or being involved in an organization, other than a law enforcement agency, that is established for the purpose of reporting or preventing criminal activity.

2. The person is a criminal street gang member.

C. Threatening or intimidating pursuant to subsection A, paragraph 3 is a class 3 felony.

Category:

Tagged with:

Over the Border: Gun and Torts Liability to Collide in Mexican Case Before the Supreme Court

By: Jonathan Turley | October 28, 2024

This month, there is a new case on the docket after the Supreme Court granted certiorari in Smith & Wesson Brands v. Estados Unidos Mexicanos. The First Circuit reversed a trial court that dismissed the case, alleging that the American firearms industry is legally responsible for violence in Mexico. I believe the First Circuit is dead wrong and will be reversed. However, as a torts professor, there is a question of whether the tort element of proximate cause could be materially changed in the case. Torts professors are already lining up to argue that there is a proximate cause under existing doctrines to hold the firearms industry liable. I respectfully disagree.

In the petition, Smith and Wesson and other gun manufacturers challenge the claim, including the argument that their sale of lawful firearms in the United States is the proximate or legal cause for the carnage in Mexico. They note that Mexico has long been riddled with violence and corruption connected to the extensive drug industry in that country.

In my view, the trial court dismissed the case correctly under the Protection of Lawful Commerce in Arms Act (PLCAA). That was passed to bar suits against firearms companies based on criminals using these products for criminal or intentionally tortious acts.

However, the First Circuit reversed on the ground that Mexico has made a legally cognizable case that gun manufacturers aided and abetted firearms trafficking that has harmed the Mexican government. The First Circuit is an outlier in this case and ignores both the purpose of the law and basic tort principles of proximate causation.

The Court has accepted the review on two questions:

1. Whether the production and sale of firearms in the United States is the “proximate cause” of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico.

2. Whether the production and sale of firearms in the United States amounts to “aiding and abetting” illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked.

PLCAA was enacted to require dismissal at the inception of lawsuits like this, and other courts have recognized that. The First Circuit’s decision creates a circuit split.

Mexico’s complaint is wildly off base both factually and legally. It suggests that these companies are effectively funneling guns to criminal gangs in Mexico by producing products that they have used in criminal conduct.

The First Circuit adopted an analogy that destroyed the credibility of its decision:

Imagine that a U.S. company sent a mercenary unit of combat troops to attack people in Mexico City. Such an attack would directly cause Mexico itself the expense of paying soldiers to defend the city. Proximate cause would be quite clear. So, too, here, where the defendants are alleged to have armed the attackers for their continuing assaults.

Is that the best these federal judges could come up with? There is a vast difference between the United States sending a combat unit across the border and manufacturers who supply distributors who serve dealers who sell lawful products to consumers. That sounds more like The Merchandisers than The Expendables.

PLCAA specifically bars any “qualified civil liability action” against gun manufacturers and licensees. Any action filed against a federal firearms licensee for damages or other relief resulting from the criminal or unlawful misuse of a firearm is expressly addressed in the statute under § 7902 of PLCAA: “A qualified civil liability action … shall be immediately dismissed by the court in which the action was brought or is currently pending.”

Mexico and gun control advocates are focusing on an exception for any manufacturer or seller of a firearm that “knowingly violated a State or Federal statute applicable to the sale or marketing of the product [firearm], and the violation was a proximate cause of the harm for which relief is sought….”

The First Circuit found that, if proven, a case can be made that Smith & Wesson engaged in “affirmative and deliberate efforts to create and maintain an illegal market for [its] weapons in Mexico” and that, as such, it was “aiding and abetting downstream dealers in violating state and federal laws governing the transfer of firearms.” The level of speculation and conjecture in such a claim is manifestly obvious. Mexico failed to offer anything beyond conclusory claims as to “downstream” users to allege this nexus.

The exception is clearly directed at violations of gun statutes, such as falsifying records or conspiracy to sell to a specific prohibited person. Even then, it must be shown to be the proximate cause of the injury. Mexico does not maintain such a specific showing but treats sales generally as aiding and abetting the violence in that country.

Under standard tort doctrine, criminal or intentionally tortious acts by third parties generally cut off legal causation. However, there is an exception where such conduct is foreseeable. Here is the language from Second Restatement of Torts 448:

“The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.”

The Third Restatement contains the same approach while, again, recognizing that “If the third party’s misconduct is among the risks making the defendant’s conduct negligent, then ordinarily plaintiff’s harm will be within the defendant’s scope of liability.” Restatement (Third) of Torts: Physical & Emotional Harm (2010)§ 19 cmt. c (“If the third party’s misconduct is among the risks making the defendant’s conduct negligent, then ordinarily plaintiff’s harm will be within the defendant’s scope of liability.”).

However, these exceptions have not been extended to the extent envisioned by Mexico or the First Circuit. For example, in the famous case of Brower v. New York Central & Hudson River Railroad, 91 N.J.L. 190 (1918), a train negligently struck a wagon carrying cider and knocked the driver senseless. The railroad personnel left his goods unprotected and they were stolen. The court ruled:

“The negligence which caused the collision resulted immediately in such a condition of the driver of the wagon that he was no longer able to protect his employer’s property; the natural and probable result of his enforced abandonment of it in the street of a large city was its disappearance; and the wrongdoer cannot escape making reparation for the loss caused by depriving the plaintiff of the protection which the presence of the driver in his right senses would have afforded.”

Simply selling a lawful product falls significantly short of this type of nexus. It would be akin to holding train manufacturers liable for the negligent operation of the train engineer in Brower in aiding and abetting such conduct by third persons.

It is hard to see how the Court could find that these companies were “the” proximate cause of the harm without creating a federal standard for proximate cause that would extend foreseeability beyond any recognition. There are powerful superseding intervening forces in play in Mexico. To embrace this theory that the manufacturers knowingly and foreseeably increased the risk of violence in Mexico would allow torts to effectively gut the industry and existing federal law.

Previously, gun control advocates tried to use product liability and nuisance laws to curtail gun sales. Those cases failed as over-extending tort doctrine to achieve indirectly the courts what could not be achieved directly in the legislatures. Conversely, Congress passed PLCAA to prevent such circumvention of the legislative process.

There are good-faith arguments to be made that the exception for criminal conduct can be maintained where there is sufficient foreseeability and that the First Circuit was merely allowing Mexico to prove its case. However, the complaint is manifestly insufficient for such a claim.

There is no specific evidence that would establish the required showing of knowledge or foreseeability by manufacturers in working with Mexican drug gangs. Mexico has been rife with drug cartels and corruption for decades. Much of this violence has occurred with the cooperation and collusion of Mexican officials, including law enforcement officials.

In my view, the First Circuit should and will be reversed.

Category:

Tagged with:

The Mark of Kaine: The Biden Administration Under Fire for Virginia Lawsuit over Non-Citizen Voter Removals

By: Jonathan Turley | October 22, 2024

Call it the Mark of Kaine. The heated dispute between the Biden Administration and the State of Virginia just took a curious turn after Virginia lawyers released support for the effort to remove alleged noncitizens from the voting rolls ahead of the presidential election. The main witness against the Biden Administration may prove to be Sen. Tim Kaine (D., Va.) who is on the ballot this election.

The Biden Administration sued to stop the removal of 6,303 alleged noncitizens from Virginia’s voter rolls before the election, which is expected to be close in the state. It relies on the National Voter Registration Act (NVRA), or the “Motor Voter Law,” which bars “systemic” removal of voters from the rolls less than 90 days before an election.

Gov. Glenn Youngkin ordered compliance with existing laws, citing Virginia code 24.2-439, requiring the removal of noncitizens whose names were added under false pretenses. It also cited Virginia Code 24.2-1019, requiring registrars to immediately notify their county or city prosecutor of such situations.

The NVRA has exceptions for removals within what the Justice Department calls the “quiet” period before an election, including the removal of individuals who are “ineligible to vote because of a criminal conviction or mental incapacity, or for “correction of registration records pursuant to this chapter.” However, the state argues as a threshold matter that these are not systemic removals. The state argues that these are individual actions triggered automatically by citizens identifying themselves as noncitizens but then joining the voting rolls. It is a crime for a noncitizen to vote in the election.

The state notes that the voter is notified of the problem and allowed to correct any errors to remain on the rolls. If they do not correct the problem, they are removed from the rolls. However, they can still vote on election day with a “provisional” ballot to challenge any removal.

Virginia is not targeting any group and does not know how these voters might vote. It is responding to a notice coming from the Department of Motor Vehicle of a possible ineligibility and potential criminal act if the person actually votes, which is admittedly rare for noncitizens.

While the Justice Department insists that some of these individuals are actually citizens, the system allows for those citizens to remain on the rolls by simply correcting the DMV record.

I understand concerns over changes close to the election, but there seemed to be a host of options for the Justice Department short of this lawsuit, including working with the state to be sure that this relatively small number of voters are given ample opportunity to correct their records.

This weekend, Virginia added a new wrinkle in the litigation. The Virginia law has been on the books since 2006. The bipartisan legislation was signed into law by then Virginia Gov. Tim Kaine. It has been used without any objection for all those years. However, it now appears that Kaine’s administration specifically asked the Justice Department to determine if the law was compliant with federal laws, including an express inquiry about the NVRA. On December 16, 2006, the Justice Department completed its review and found no objections to the Virginia law though it added that it reserves the right to object in the future to any such laws.

Gov. Youngkin further told Fox News that past governors continued to use the law within the 90 days period without a peep of objection from the Justice Department. These facts distinguish the Virginia case from the Alabama case where a court enjoined removal of names of suspected non-citizens.

Now, Kaine is on the ballot and there is a close election for the presidency. The Biden Administration is suddenly claiming to be “shocked, shocked” that there are alleged noncitizens being removed from the ballot.

In July, in an interview with WJLA-TV , Kaine insisted that “voting should be reserved for U.S. citizens.” When pressed recently, his campaign issued a non-statement statement that, again, insisted that “it is illegal for noncitizens to vote” while adding that “just as we want to block noncitizens from voting, we need to keep eligible voters from being purged from voting rolls, particularly just weeks from an election.”

Youngkin agrees that the state must “block noncitizens from voting” and is using the very law Kaine signed (and the Justice Department approved) for that purpose.

In the end, these votes are unlikely that to change any electoral outcomes. However, there is a broader fight building over a variety of election integrity efforts. States have complained that the Biden Administration has harassed and sued them at every turn as they sought to require voter identification or other laws.

Florida is now suing the Biden administration for allegedly obstructing the verification of immigration records so the state can remove any non-citizens. The state alleges that the Biden Administration has simply refused to supply required verification information.

These are just a few of the over 165 election-related lawsuits filed in the days before the election by the federal and states authorities and various public interest groups.

Some local officials are sparring with state officials. Fourteen states do not require voter identification. Despite the opposition from the Administration and many Democratic leaders, Gallop and other polling show Americans overwhelmingly support voter identification laws. In California, the state actually made it illegal for local election officials to ask for identification from voters.

The key about the lawsuits filed close to the election is the first round is often the last round. Whoever wins these fights for injunctive relief is likely to remain the prevailing party in the final days before the election.

There is now a virtual army of lawyers deployed by both parties to secure or to protect the expected small margin of victory in the election. Indeed, lawsuits like the Virginia action constitute a type of “harassing fire” to push back on states on identification and eligibility efforts.

The Biden Administration’s move against Virginia shows how one person’s voter integrity is another’s voter suppression. Indeed, the man who signed this state law is now supporting the Administration seeking to limit its use.

Yet, the mark of Kaine on this law is an indelible reminder of how even long-standing practices are now being challenged in this hair-triggered environment. For voters, they will have to be careful when picking their line at their polling place. The longest line is likely the lawyers waiting to get inside.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Tagged with:

No, the Alien Enemies Act is Not a Viable Legal Basis for “Operation Aurora”

By: Jonathan Turley | October 14, 2024

In announcing his “Operation Aurora,” former President Donald Trump has suggested that he may use the Alien Enemies Act (AEA) of 1798 to crackdown on “every illegal migrant criminal network operating on American soil.” The plan to begin mass deportations is certainly popular with the public, according to polling. However, without a declaration of war, he will likely have to look to alternative statutory vehicles for a peacetime operation. There are novel arguments that could be made in federal court, but they run against the presumed meaning of critical terms under the law. The odds do not favor the government in the likely challenges.

This is not the first time that the Trump campaign has invoked the AEA. Last year, the campaign cited the law as giving it the power to “remove all known or suspected gang Members, drug dealers, or Cartel Members from the U.S.”

The AEA has only been used three times and each time we were in a declared war: the War of 1812, World War I, and World War II. It is a law that became infamous in its use to put Japanese, German, and Italian civilians in internment camps during World War II.

In DeLacey v. United States in 1918, the Ninth Circuit wrote that:

The first reported case arising under the [AEA] is [by the Pennsylvania Supreme Court in] Lockington’s Case [in 1814] … Lockington … had refused to comply with the executive order of February 23, 1813, requiring alien enemies who were within 40 miles of tidewater to retire to such places beyond that distance from tidewater as should be designated by the marshals. He was arrested, and on petition for habeas corpus attempted to test the legality of his imprisonment. Chief Justice Tilghman said of the [AEA]:

“It is a provision for the public safety, which may require that the alien should not be removed, but kept in the country under proper restraints. … It is never to be forgotten that the main object of the law is to provide for the safety of the country from enemies who are suffered to remain within it. In order to effect this safety, it might be necessary to act on sudden emergencies. … The President, being best acquainted with the danger to be apprehended, is best able to judge of the emergency which might render such measures necessary. Accordingly, we find that the powers vested in him are expressed in the most comprehensive terms.”

The law’s sweeping language makes it ripe for abuse. Pennsylvania Supreme Court Justice Brackenridge in Lockington’s Case (1814) observed that under the AEA “the President would seem to be constituted, as to this description of persons, with the power of a Roman dictator or consul, in extraordinary cases, when the Republic was in danger, that it sustains no damage: ne quid detrimenti respublica capiat.”

However, the AEA’s only limiting language is found in the triggering language for those powers:

“Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event…”

In Ludecke v. Watkins, 335 U.S. 160 (1948), Supreme Court Justice Felix Frankfurter wrote a supportive decision of the presidential authority under the AEA on when the powers expired, but not when the powers begin:

“And so, we reach the claim that, while the President had summary power under the Act, it did not survive cessation of actual hostilities. This claim in effect nullifies the power to deport alien enemies, for such deportations are hardly practicable during the pendency of what is colloquially known as the shooting war. Nor does law lag behind common sense. War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops.” (emphasis added).

This broad granting of authority under the AEA is obviously a great attraction for presidents who have rarely hesitated to use the maximal levels of their powers. However, the threshold requirement of a declared war has proven the limiting element, and it is telling that the law has been used only three times by presidents.

It can be used for limits that fall short of deportation or internment. For example, President Woodrow Wilson barred alien enemies during World War I from possessing firearms and explosives, coming within a half a mile of a military facility or munitions factory, residing in certain areas, possessing certain communications equipment, and publishing certain types of materials.

Trump can argue that governments such as Venezuela are using the open border to flood the nation with migrants, including those released from their prisons. That does offer a possible avenue under the claim that a formal declaration, but it would also require a broad reading of the term “invasion” or “incursion.” The problem is that the clear thrust of the law was a conventional war. The question is whether federal courts are willing to adopt a very broad interpretation of such terms despite the presumed legislative intent behind the law at the time of its passage.

The greatest hope for a new Trump Administration would be to argue that the use of the law is a “political question” and thus inappropriate for judicial review. That is often a powerful argument that leads to deference of the courts to the political branches.

Yet, even Baker v. Carr, the Supreme Court’s opinion recognizing the doctrine, reserved the possible use of judicial review to address “an obvious mistake” or “manifestly unauthorized exercise of power.” Courts have declined to use that reservation but there are strong arguments that this is a matter of statutory interpretation and not a matter left to the political discretion of the legislative or executive branches.

Politicians often speak of national emergencies as “wars” but there remains a difference between the colloquial and the legal. A war on illegal immigration is not the same as a war on the Axis powers. The former can be declared in a campaign while the latter requires a declaration of Congress.

None of this means that a president would not have the authority for mass deportations or that Congress could not pass additional such authority. The massive influx of millions of undocumented persons is now a national crisis with growing national security, economic, and social costs for the nation. The numbers are certainly analogous to an “invasion” for cities and states grappling with the wave of migrants. However, the AEA in my view is a poor vehicle for such a program.

Accordingly, I remain skeptical that such a massive program would survive judicial review. Any effort to do so would face an emergency demand for a preliminary injunction. As a threshold legal question, it could move fairly quickly through the courts, and we could have an answer to a question that has lingered for over two centuries.

Category:

Tagged with:

Adversarial Process or Oppo Research? Judge Agrees to Release More Trump Material Before the Election

By: Jonathan Turley | October 11, 2024

It appears that U.S. District Judge Tanya Chutkan and Special Counsel Jack Smith are not done yet in releasing material in advance of the election. In a previous column, I criticized the release of Smith’s 180-page brief before the election as procedurally irregular and politically biased, a criticism shared by CNN’s senior legal analyst and other law professors. Nevertheless, on Thursday, Judge Chutkan agreed to a request from Smith to unseal exhibits and evidence in advance of the election. The brief clearly contains damning allegations, including witness accounts, for Trump. The objection to the release of the brief was not a defense of any actions taken on January 6th by the former president or others, but rather an objection to what even the court admitted was an “irregular” process.

As discussed earlier, Smith has been unrelenting in his demands for a trial before the election. He has even demanded that Donald Trump be barred from standard appellate options in order to expedite his trial. Smith never fully explained the necessity of holding a trial before the election beyond suggesting that voters should see the trial and the results — assaulting the very premise of the Justice Department’s rule against such actions just before elections.

To avoid allegations of political manipulation of cases, the Justice Department has long followed a policy against making potentially influential filings within 60 or 90 days of an election. One section of the Justice Department manual states “Federal prosecutors… may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”

Even if one argues that this provision is not directly controlling or purely discretionary, the spirit of the policy is to avoid precisely the appearance in this case: the effort to manipulate or influence an election through court filings.

With no trial date for 2025, there is no reason why Smith or Chutkan would adopt such an irregular process. The court could have slightly delayed these filings until after the approaching election or it could have sealed the filings.

If there is one time where a court should err on the side of avoiding an “irregular” process, it is before a national election. What may look like simply an adversarial process to some looks like oppo research to others. Delaying the release would have avoided any appearance of such bias.

For Smith, the election has long been the focus of his filings and demands for an expedited process. Smith knows that this election is developing into the largest jury verdict in history. Many citizens, even those who do not like Trump, want to see an end to the weaponization of the legal system, including Smith’s D.C. prosecution. Trump has to lose the election for Smith to be guaranteed a trial in the case.

Chutkan has given the Trump team just seven days to oppose her order. That would still allow the material to make it into the public (and be immediately employed by the media and Harris campaign) just days before the election. The move will only increase criticism that this looks like a docket in the pocket of the DNC.

It is telling that, once again, the timing just works out to the way that is most politically impactful. Many are left with a Ned Flanders moment of “well, if that don’t put the “dink” in co-inky-dink.”

Category:

Crime, Law, Media, Political

Tagged with:

Jack Smith’s October Surprise Was Not That Surprising . . . and that is the Problem

By: Jonathan Turley | October 7, 2024

Below is my column in The Hill on the release of the filing by Special Counsel Jack Smith just weeks before the election. Even Judge Tanya Chutkan described the move as “irregular,” but still ordered the release. While the usual voices heralded the move, others, including the CNN senior legal analyst, denounced the release as a raw political act by the court and the Special Counsel. The problem is that it was not in the least bit surprising.

Here is the column:

“The most stupendous and atrocious fraud.” Those words from federal prosecutors could have been ripped from the filing this week of Special Counsel Jack Smith defending his prosecution of former President Donald Trump.

Yet they were actually from a Justice Department filing 184 years ago, just days from the 1840 presidential election. Democratic President Martin Van Buren was struggling for reelection against Whig William Henry Harrison, and his Justice Department waited until just before voters went to the polls to allege that Whig Party officials had paid Pennsylvanians to travel to New York to vote for Whig candidates two years earlier. It was considered by many to be the first “October Surprise,” the last-minute pre-election scandal or major event intended to sway voters.

To avoid such allegations of political manipulation of cases, the Justice Department has long followed a policy against making potentially influential filings within 60 or 90 days of an election. One section of the Justice Department manual states “Federal prosecutors… may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”

Jack Smith, however, has long dismissed such considerations. For years, Smith has been unrelenting in his demands for a trial before the election. He has even demanded that Donald Trump be barred from standard appellate options in order to expedite his trial. Smith never fully explained the necessity of holding a trial before the election beyond suggesting that voters should see the trial and the results — assaulting the very premise of the Justice Department’s rule against such actions just before elections.

After the Supreme Court rendered parts of his indictment against Trump presumptively unconstitutional, Smith made clear that he was prepared to prosecute Trump up to the very day of his inauguration. True to his reputation and record, Smith refused to drop the main allegations against Trump to avoid official decisions or acts that the court found to be protected in Trump v. United States. Instead, he stripped out some prior evidence linked to Trump’s presidency, including witnesses serving in the White House. Yet the same underlying allegations remain. Smith just repeatedly uses references to Trump as acting as “a private citizen.”

It is like a customer complaining that he did not order a Coke and the waiter pouring it into a Mountain Dew bottle and saying, “Done!”

Smith even refused to drop the obstruction of official proceedings, despite another recent Supreme Court decision (Fischer v. United States) rendering that charge presumptively invalid.

Smith is making his case not to Judge Tanya Chutkan, but to America’s voters. Chutkan has consistently ruled with Smith to help him expedite the case. She permitted his hastened “rocket docket” despite declaring that she would not consider the election schedule as a factor in the pace of filings or even of the trial itself.

For critics, Judge Chutkan has proven far too motivated in the case. Indeed, many thought that she should have recused herself given her statement from a sentencing hearing of a Jan. 6 rioter in 2022. Chutkan said that the rioters “were there in fealty, in loyalty, to one man — not to the Constitution.” She added then “[i]t’s a blind loyalty to one person who, by the way, remains free to this day.” That “one person” was then brought to her courtroom for trial by Smith.

In their latest move, Chutkan and Smith used the Supreme Court decision to file a type of preemptive defense — an excuse to lay out the allegations against Trump in a 165-page filing filled with damaging accounts and testimonials against Trump, just weeks ahead of the election.

Even Chutkin herself acknowledged that Smith’s request was “procedurally irregular,” but she still allowed it. This was a premature exercise that would ordinarily occur months later, after defense filings. She could have scheduled such filings just a few weeks from now. She could have easily kept the filing under seal to avoid the appearance of political machinations. But the political effect appears to be the point. Chutkin again selected the most politically impactful option, at Smith’s urging.

This was so “irregular” that ordinarily anti-Trump legal analysts, such as CNN’s senior legal analyst Elie Honig, denounced Smith’s filing as “an unprincipled, norm-breaking practice.” He added that “Smith has essentially abandoned any pretense; he’ll bend any rule, switch up on any practice — so long as he gets to chip away at Trump’s electoral prospects.”

Others, as expected, applauded the filing as not just well-directed but well-timed. Smith was making his closing election argument to voters because he knows that the 2024 election will be the largest jury verdict in history. If voters reelect Trump, then neither Chutkin nor Smith will likely see a jury in the case. This is why they must convict Trump now in the public eye, or else admit to an effective acquittal by plebiscite.

Their timing could well backfire. The weaponization of the legal system is central to this election, including the role of the Justice Department in pushing the debunked Russia-collusion allegations from the 2016 race. For many, the content of Smith’s filing is not nearly as important as the time stamp over the case caption. Titled a “Motion for Immunity Determination,” it seems more like a “Motion for an Election Determination.”

Smith’s raw political calculation should be troubling for anyone who values the rule of law. None of this excuses anything in these allegations against Trump. But the most disturbing part of Smith’s October Surprise was that it was not in the least bit surprising.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Tagged with:

Letitia James May be Winning the Lawfare but Losing the War

By: Jonathan Turley | September 30, 2024

Below is my column in the Hill on the rough week for New York Attorney General Letitia James in court. James has campaigned on lawfare, and the Democratic New York voters have wildly supported her weaponization of the legal system against Trump and others. Now some judges are balking…

Here is the column:

In an age of lawfare, New York Attorney General Letitia James has always embraced the total war option. Her very appeal has been her willingness to use any means against political opponents. James first ran for her office by pledging to bag Donald Trump on something, anything. She did not specify the violation, only that she would deliver the ultimate trophy kill for Democratic voters. James follows the view of what Prussian General Carl von Clausewitz said about war, law is merely politics “by other means.”

Yet, the political success of James in weaponizing her office has been in stark contrast with her legal setbacks in courts. James earlier sought to use her office to disband the National Rifle Association, the most powerful gun rights organization in the country, due to self-dealing and corruption of executives. James notably did not target liberal groups accused of similar violations. The ridiculous effort to disband the NRA collapsed in court.

It did not matter. James knew that such efforts were performative and that New York voters did not care if such attacks failed. She will continue to win the lawfare battles, even if she loses the war.

This week, two of James’s best-known campaigns were struggling in court.

James is best known for her fraud case against Trump, in which she secured a $464 million fine and a ban on Trump from the New York real estate business for three years. That penalty, which has now risen to $489 million with interest, was in a case where no one had lost a dime due to the alleged inaccurate property valuations in bank loans secured by the Trump organization. Not only where the banks fully paid on the loans and made considerable profits, but they wanted to make additional loans to the Trump organization.

In appellate arguments this week, James’s office faced openly skeptical justices who raised the very arguments that some of us have made for years about the ludicrous fine imposed by Judge Arthur Engoron. Justice David Friedman noted that this law “is supposed to protect the market and the consumers — I don’t see it here.”

His colleague Justice Peter Moulton told her office “The immense penalty in this case is troubling” and added, “How do you tether the amount that was assessed by [Engoron] to the harm that was caused here where the parties left these transactions happy?”

The answer, of course, is the case was never about markets. It was about politics. The fact that the banks were “happy” is immaterial. Happiness in New York is a political, not legal calculus. The justices did not rule this week, but an opinion could be issued within a month.

In the same week, James faced a stinging defeat in another popular cause. James had targeted pro-life organizations for spreading supposed “disinformation” in not just opposing the use of mifepristone (the abortion pill used in the majority of abortions in the United States), but in advocating the use of reversal procedures if mothers change their minds before taking the second drug in the treatment regimen.

Critics charge that, while there are some studies showing successful reversal cases, the treatment remains unproven and unapproved. It remains an intense debate. James, however, wanted to end the debate. She targeted pregnancy centers and was then sued by two pro-life ministries, Summit Life Outreach Center and the Evergreen Association.

Judge John Sinatra Jr. blocked James‘s crackdown as a denial of free speech. Notably, these centers were not profiting by sharing this information or advocating such reversal treatment. James merely declared that people advocating such reversal treatments are engaged in “spreading dangerous misinformation by advertising…without any medical and scientific proof.”

It is a familiar rationale on the left and discussed in my latest book, “The Indispensable Right: Free Speech in an Age of Rage.” It is the same rationale that led to the banning and blacklisting of experts during the pandemic for views that have now been vindicated on the efficacy of masks and other issues. They were silenced by those who declared their viewpoints as dangerously unproven or unapproved, but who were themselves wrong.

James claimed a right to crack down on views that she deemed unproven, even by those who were seeking only to disseminate information rather than sell products. It did not seem to matter to her that, in the 2018 in NIFLA v. Becerra, the Supreme Court rejected the effort by California Attorney General Xavier Becerra (now the secretary of Health and Human Services) to require crisis pregnancy centers to refer abortions. The court refused to create an exception for requiring speech from licensed professionals.

After the effort failed to force doctors to disseminate pro-abortion information in California, James sought to prevent others from disseminating pro-life information in New York. The court ruled that, under the First Amendment, government officials cannot simply declare certain views as “disinformation” as a pretext to censor disfavored speech.

If there are harmful or fraudulent products or practices, the government has ample powers to target businesses and professionals involved with them. James, however, was seeking to silence those who advocate for a treatment that is unproven but not unlawful.

James’s legacy now includes an effort to disband a civil rights organization, deny free speech and secure confiscatory fines against her political opponents. Yet she is lionized by the media and politicians in an election that is billed as “saving democracy.”

In the end, James knows her audience, and it is not appellate judges. It does not matter to her if she is found to be violating the Constitution or abusing opponents. She has converted the New York legal system into a series of thrill-kills.

For some judges, however, the thrill may be gone.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Tagged with:

“A Better Deterrence”: Hillary Clinton Calls for the Arrest of Americans Spreading Disinformation

By Jonathan Turley | September 18, 2024

Speaking on MSNBC’s The Rachel Maddow Show this week, Clinton was asked about continued allegations of Russian efforts to disseminate Russian propaganda in the United States. Clinton responded:

Hillary Clinton has long been one of the most anti-free speech figures in American politics, including calling upon European officials to force Elon Musk to censor American citizens under the infamous Digital Services Act (DSA). She is now suggesting the arrest of Americans who spread what she considers disinformation. It is a crushingly ironic moment since it was her campaign that funded the infamous Steele dossier and spread false stories of Russian collusion during her presidential campaign. Presumably, that disinformation would not be treated as criminal viewpoints.

“I think it’s important to indict the Russians, just as Muller indicted a lot of Russians who were engaged in direct election interference and boosting Trump back in 2016. But I also think there are Americans who are engaged in this kind of propaganda. And whether they should be civilly or even in some cases criminally charged is something that would be a better deterrence, because the Russians are unlikely, except in a very few cases, to ever stand trial in the United States.”

The interview was chillingly consistent with Clinton long antagonism toward free speech.

START AROUND THE 9TH MINUTE. SHE WANTS AMERICANS LIKE ME PROSECUTED FOR PUBLISHING THE TRUTH.

Clinton, of course, was not challenged by Maddow on the fact that her campaign was the conduit for disinformation linked to Russian intelligence services. Not only did U.S. intelligence believe that the Clinton campaign was used to make the debunked claims, but it was clearly done for purely political purposes.

Clinton efforts were so obvious by July 2016 that former CIA Director John Brennan briefed former President Obama on Hillary Clinton’s alleged “plan” to tie then-candidate Donald Trump to Russia as “a means of distracting the public from her use of a private email server.” The Russian investigation was launched days after this briefing.

Her general counsel, Marc Elias, his former partner Michael Sussmann, and the campaign were later found involved in not just spreading the false claims from the Steele dossier but other false stories like the Alfa Bank conspiracy claim.

It was Elias who managed the legal budget for the campaign. We now know that the campaign hid the funding of the Steele dossier as a legal expense.

New York Times reporter Ken Vogel said that Elias denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said that Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman declared, “Folks involved in funding this lied about it, and with sanctimony, for a year.”

Elias was also seated next to John Podesta, Clinton’s campaign chairman, when he was asked about the role of the campaign, he denied categorically any contractual agreement with Fusion GPS. Even assuming that Podesta was kept in the dark, the Durham Report clearly shows that Elias knew and played an active role in pushing this effort.

The Clinton campaign lied to the media, spread false claims of Russian disinformation, and was accused of being a conduit for Russian intelligence. So, would the “better deterrence” have been for Clinton herself to be arrested?

Sussmann ultimately did stand trial but was acquitted. Notably, John Durham noted that “no one at Fusion GPS … would agree to voluntarily speak with the Office” while both the DNC and Clinton campaign invoked privileges to refuse to answer certain questions.

For a person who is on her fourth memoir, Clinton is remarkably hostile to free speech. Notably, in all of these memoirs, she does not address her prominent role in calling for the censorship and now arrest of those with opposing views. She also does not discuss how her campaign lied to the media and funded the Steele dossier. Perhaps that is coming in the fifth memoir. What is clear is that Clinton herself has no fear that such prosecution would ever await her. She is one of those who may silence others but not be silenced. The public is to be protected from views that she deemed disinformation, misinformation, or malinformation.

To that end, as one of the guardians of truth, Clinton chastised the media for not being more consistently anti-Trump, a daunting prospect since the media has been accused of running almost 90 percent negative stories on Trump. Nevertheless, shortly after the second assassination attack on Trump, Clinton called Trump a danger to the world and added that “I don’t understand why it’s so difficult for the press to have a consistent narrative about how dangerous Trump is.”

Ideally, between the arrests of those accused of disinformation and an effective state media, Clinton hopes to rein in errant thoughts and viewpoints.

In the interview, Maddow did not have even a slight objection to the implications of arresting people with criminal viewpoints. Censorship and criminal prosecutions are such mainstream concepts that they are as unsurprising as a fourth Clinton memoir.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).

Category:

censorship, Crime, General, Law, Political

Tagged with:

Well-Known Antifa Member Sentenced to Jail Despite Journalism Defense

By: Jonathan Turley | September 13, 2024

Alissa Eleanor Azar, a well-known Antifa activist, was sentenced to jail recently in Oregon after being convicted of felony riot and disorderly conduct. What is notable about the case was the journalism defense put forward by Azar, who claims that she was not a participant but press. That assertion is belied by not just videotapes of Azar assaulting members of the far-right group The Proud Boys but her long record of violence.

The court rejected the journalism defense after reviewing videotapes showing Azar organizing with Antifa and then engaging in the attacks. Ironically, while arguing for press freedom, her counsel attempted to bar media from the courtroom, seeking an order to block the conservative outlet Post Millennial, which has dedicated much coverage to Antifa.

As discussed in my new book, “The Indispensable Right: Free Speech in an Age of Rage,” I explore the history of Antifa as a movement that began in Germany:

“Antifa originated with European anarchist and Marxist groups from the 1920s, particularly Antifaschistische Aktion, a Communist group from the Weimar Republic before World War II. Its name resulted from the shortening of the German word antifaschistisch. In the United States, the modern movement emerged through the Anti- Racist Action (ARA) groups, which were dominated by anarchists and Marxists. It has an association with the anarchist organization Love and Rage, which was founded by former Trotsky and Marxist followers as well as offshoots like Mexico’s Amor Y Rabia. The oldest U.S. group is likely the Rose City Antifa (RCA) in Portland, Oregon, which would become the center of violent riots during the Trump years. The anarchist roots of the group give it the same organizational profile as such groups in the early twentieth century with uncertain leadership and undefined structures.”

Despite the denial of its existence by figures like Rep. Jerry Nadler (D., N.Y.), I have long written and spoken about the threat of Antifa to free speech on our campuses and in our communities. This includes testimony before Congress on Antifa’s central role in the anti-free speech movement nationally.

As I have previously written, it has long been the “Keyser Söze” of the anti-free speech movement, a loosely aligned group that employs measures to avoid easy detection or association. Yet, FBI Director Chris Wray has repeatedly pushed back on the denials of Antifa’s work or violence. In one hearing, Wray stated “And we have quite a number” — and “Antifa is a real thing. It’s not a fiction.”

We have continued to follow the attacks and arrests of Antifa followers across the country, including attacks on journalists.

Some Democrats have played a dangerous game in supporting or excusing the work of Antifa. Former Democratic National Committee deputy chair Keith Ellison, now the Minnesota attorney general, once said Antifa would “strike fear in the heart” of Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany. Ellison’s son, Minneapolis City Council member Jeremiah Ellison, declared his allegiance to Antifa in the heat of the protests this summer. During a prior hearing, Democratic senators refused to clearly denounce Antifa and falsely suggested that the far right was the primary cause of recent violence. Likewise, Joe Biden has dismissed objections to Antifa as just “an idea.”

It is at its base a movement at war with free speech, defining the right itself as a tool of oppression. That purpose is evident in what is called the “bible” of the Antifa movement: Rutgers Professor Mark Bray’s Antifa: The Anti-Fascist Handbook.

Bray emphasizes the struggle of the movement against free speech: “At the heart of the anti-fascist outlook is a rejection of the classical liberal phrase that says, ‘I disapprove of what you say but I will defend to the death your right to say it.’”

Bray admits that “most Americans in Antifa have been anarchists or antiauthoritarian communists… From that standpoint, ‘free speech’ as such is merely a bourgeois fantasy unworthy of consideration.”

Antifa has often targeted journalists or critics for violent attacks. The conservative site Hot Air showed attacks by Antifa supporters after the hearing.

Judge Todd L. Van Rysselberghe for the 5th Judicial District Circuit Court of Oregon sentenced her to 14 days in a local jail, followed by 36 months of supervised probation and GPS monitoring. That short stint was still more than courts and prosecutors have been willing to impose in past cases involving Antifa violence.

Previously, Azar was charged with violence in the Portland riots. However, as with other district attorneys, Multnomah County District Attorney Mike Schmidt dropped those and other charges despite massive property damage and injuries associated with those riots.

The use of media credentials by Antifa activists has dangerously blurred the line of press and protesters for police. That puts real journalists at greater risk.

In the meantime, Antifa (the group that supposedly does not exist) has elected members to legislative offices in Europe as more radical parties make inroads both in the United States and around the world.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).

Category:

Crime

Tagged with:

Hunter Biden Loses Game of Chicken with Himself

By: Jonathan Turley | September 6, 2024

Below is my column in the New York Post on the sudden guilty plea from Hunter Biden in his federal tax case. It was not the plea but the timing of the plea that was the surprise. What is missing is any cognizable legal strategy in waiting until the first day of the trial to make a “naked plea” when it offered the least possible benefit to him. It was like waiting for the water to reach the deck of the Titanic before asking about swimming lessons. He was a tad late and then unsuccessfully sought to plead guilty without admitting guilt.

Here is the column:

Hunter Biden just showed the perils of playing the game of chicken with yourself. For months, many of us have marveled at the sight of Hunter careening toward a cliff while declaring publicly that he was prepared to go all the way. The Justice Department was never going over the cliff because they had nothing to gain or lose in open-and-shut cases in Delaware and California. There was never a serious question of convicting Hunter of these crimes, just a will of the Justice Department to secure them.

Special Counsel David Weiss inexplicably allowed serious felonies to expire, refused to bring obvious crimes as an unregistered foreign agent, and sought to cut an embarrassing sweetheart deal with Hunter to avoid any jail time on a couple of minor crimes. The deal then collapsed in open court when a judge balked at a provision that would give Hunter sweeping immunity for any crime. When she asked the federal prosecutor if he had ever seen such a plea bargain offered a defendant other than the President’s son, he admitted that he had not.

That is when the chest pounding began. Unwilling to accept anything but the sweetheart deal, Hunter’s defense counsel told the prosecutors in court to “just rip it up.” They did and Weiss was forced to actually prosecute Hunter.

According to the Justice Department, Weiss continued to try to cut a plea bargain with Hunter but was rebuffed by the defense. They then went to Delaware, the home of the Bidens, and tried to convince a sympathetic jury that Hunter was a drug addict who was not responsible for his action as well as other unsupported claims. It failed in spectacular fashion with a conviction on all counts.

Hunter then floored it for the California cliff on the tax charges as the Justice Department and most of us watched confused about how he was trying to intimidate. He hit the brakes as the trial was beginning. Hunter has succeeded in putting himself in the worst possible position for a plea. He waited until he had little to trade and reportedly did not even inform the prosecutors of his decision.

But it gets worse. If he had agreed to a less generous plea deal last year, he could have secured a recommended sentence on both the gun and tax charges. Instead, he will go into this sentencing with a past criminal record, an aggravating factor that could reduce the benefit of the belated plea. In the end, Hunter had nothing to offer, nothing to bargain. He plead guilty to all nine counts.

This decision may still be based more on political than legal calculations. Hunter was almost certain to be convicted. But it would have taken time as his father’s administration (and pardon authority) wanes. If Hunter still hopes for a presidential commutation or pardon, the chances of such executive action is dramatically improved after a sentencing. The White House rarely considers pardons before a trial and sentencing. Indeed, they often wait for appeals to run their course.

Moreover, a demand for jail time seems likely from the Justice Department given this history and it is equally likely to be granted. If that sentence is lengthy, it will add pressure on President Biden to take action with a commutation or pardon. If President Biden does violate his promise to not pardon Hunter, it would not be a surprise for many. In 2022, I wrote that the President could resign or withdraw as a candidate and pardon Hunter.

I referred to this as “break-the-glass option”: “He would end his political career with an act as a father, which some would condemn but most would understand.”

The plea also avoided the massive influence peddling operation of the Biden family from being aired in open court.

The refusal of the Justice Department to charge Hunter as an unregistered foreign agent stands in flagrant contradiction to past and current cases under the Foreign Agents Registration Act (FARA).

None of this explains the logic of Hunter’s criminal defense strategy. A legal one-man game of chicken is certainly engrossing to watch but leaves most lawyers wincing rather than flinching as the spectacle unfolds.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

International Politics, Law

Tagged with:

“Keyboard Warrior”: British Crackdown Results in Three-Year Sentence Over Anti-Migrant Postings

By: Jonathan Turley | August 20, 2024

Three years ago, we discussed the conviction of a British man for “toxic ideologies,” under the draconian laws criminalizing inciteful or dangerous speech. The erosion of free speech appears to have only accelerated in the UK. As is often the case, the attacks on free speech increase during periods of unrest, anger or fear. With the recent anti-immigration riots, British authorities have used their laws to round up a large number of citizens expressing anti-immigrant views and some have already been convicted. Those cases include Wayne O’Rourke, 35, who has been sentenced to three years in prison for “stirring up racial hatred.”

As I have previously written, the riots were triggered by false reports spread online about the person responsible for an attack at a Taylor Swift-themed dance event that left three girls dead and others wounded. Despite false claims about his being an asylum seeker, the alleged culprit was an 18-year-old British citizen born to Rwandan parents. The government and news outlets were quick to challenge these accounts, but violent riots have raged across the country, including such despicable acts as burning immigrant housing. There is no question that the government should crack down on such violence and arrest those engaging in criminal conduct. However, the government immediately pursued those who were expressing hateful or inciteful views.

In my book, “The Indispensable Right: Free Speech in an Age of Rage,” I discuss the collapse of free speech protections in Europe and the United Kingdom specifically. That discussion includes the case of Nicholas Brock, 52, who was convicted for his collection of racist and extreme right material in his home. Detective Chief Superintendent Kath Barnes, Head of Counter Terrorism Policing South East (CTPSE) acknowledged that others might collect such items for historical or academic purposes but Brock crossed the line because he agreed with the underlying views:

“From the overwhelming evidence shown to the jury, it is clear Brock had material which demonstrates he went far beyond the legitimate actions of a military collector…Brock showed a clear right-wing ideology with the evidence seized from his possessions during the investigation….We are committed to tackling all forms of toxic ideology which has the potential to threaten public safety and security.”

That “commitment” is evident in a slew of arrests after the recent riots.

The United Kingdom is an example of what I describe as a pattern of “rage rhetoric” becoming “state rage” in these periods of unrest.

Once again, many of these postings are worthy of condemnation as racist and inflammatory. Many of us have done so. Defending free speech is not a defense of the underlying viewpoints but rather the right to express opposing viewpoints. Good speech can then rebut the bad speech.

The United Kingdom is now committed to silencing opposing views through censorship and criminal charges. As discussed in the book, such laws have never succeeded in history. Not once. They have never killed “toxic ideologies” or deterred any movement. What they do is suppress the free speech of everyone in an ill-conceived effort to legislatively ban hate in society.

An example is found in Germany, which has long had some of the harshest censorship and criminalization laws. According to polling, only 18 percent of Germans feel free to express their opinions in public. Fifty-nine percent of Germans do not even feel free expressing themselves in private among friends. Only 17 percent feel free to express themselves on the internet. They have silenced the wrong people, but there is now a massive censorship bureaucracy in Europe and the desire to silence opposing voices has become insatiable.

Recently, I wrote about the chilling message of Metropolitan Police Commissioner Sir Mark Rowley that not only will British authorities arrest citizens for anti-immigration postings but may pursue others in countries like the United States for stirring up trouble. Now, they are imprisoning “keyboard warriors,” who express inciteful thoughts.

According to the local Lincolnshire Free Press, O’Rourke encouraged his 90,000 followers to join the protests and told them how to remain anonymous during protests. That is similar to many posts on the left by groups like Antifa. O’Rourke wrote such postings as “People of Southport where the f**k are you, get out on the street,” “give them hell lads,” and “Sunderland, go on lads.”

Notably, his counsel Lucia Harrington assured the court that her client wants to “re-educate” himself on these issues. His self-imposed “reeducation” was not enough for Judge Catarina Sjolin Knight, who denounced O’Rourke and “[t]he flames fanned by keyboard warriors like you.”

Lincolnshire Chief Superintendent Kate Anderson promised more such cases for those espousing disfavored views: “This charge demonstrates that we will take fast and decisive action against anyone suspected of sharing harmful content online. We retain a commitment to proactively police and keep people safe across the county.”

Many others have been similarly charged. That includes first offender William Nelson Morgan, 69, who was seen holding a stick and refusing to disperse at a protest at a library in West Yorkshire. He was sentenced to two years and eight months in prison even though he did not take part in rioting. While there can be legitimate charges and penalties for a failure to disperse, the roughly three-year sentence seems fueled on the content of his viewpoints rather than his specific actions.

Likewise, Billy Thompson, 31, received 12 weeks in jail for posting emojis depicting minorities and a gun with inflammatory language. He did not participate in the rioting. There are many more such cases being reported daily.

As in Germany, years of prosecuting free speech has achieved nothing beyond chilling the speech of all citizens. For years, I have been writing about the decline of free speech in the United Kingdom and the steady stream of arrests.

There is an alternative to criminalizing speech. You can punish criminal conduct including proportionate sentencing for the failure to disperse. You can then allow free speech to combat false or hateful viewpoints. British politicians have acknowledged that a large number of citizens hold anti-immigration views. Cracking down on such viewpoints will change few minds and likely only reaffirm the anger directed against the government. Opposition to these laws has fallen to a dwindling number of free speech advocates in the UK, including author J.K. Rowling. Rowling has opposed a Scottish law, the Hate Crime and Public Order (Scotland) Act 2021, that criminalizes speech viewed as “stirring up hatred” relating to age, disability, religion, sexual orientation, transgender identity or being intersex. That crime covers insulting comments and anything “that a reasonable person would consider to be threatening or abusive.”

For those in the United States who have remained silent in the face of our own anti-free speech movement, Europe offers a glimpse into our future if we do not fight to preserve this indispensable right.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).

Category:

Tagged with:

Combatting “False Narratives”: D.C. Circuit Refuses to Block Judge Limiting the Speech of Jan. 6th Defendant

By Jonathan Turley | August 11, 2024

We have previously discussed controversial sentences handed down in cases involving rioters on January 6th, including sentencing orders that, in my view, violate First Amendment rights. That included the case of Daniel Goodwyn, who pleaded guilty to a single misdemeanor count of entering and remaining in a restricted building. That crime would ordinarily not involve any jail time for a first offender. However, Judge Reggie B. Walton of the United States District Court for the District of Columbia decided that he would use the case to regulate what Goodwyn was reading and communicating with a chilling probation order. After the case was sent back by the D.C. Circuit, Walton doubled down on his extraordinary order. Now the D.C. Circuit has refused to hear an emergency appeal.

Judge Walton has attracted controversy and criticism over his public comments about former President Donald Trump and the other issues. He caused a stir in Washington after doing an interview with CNN in which he rebuked former President Donald Trump for his criticism of judges and their family members. Walton previously called Trump a “charlatan,” and said that “I don’t think he cares about democracy, only power.”

Critics charged that Walton’s public statements ran afoul of Canon 3A(6) of the Code of Conduct for United States Judges, which states: “A judge should not make public comment on the merits of a matter pending or impending in any court.”

Walton then triggered criticism over his handling of the Goodwin case. The case involved Daniel Goodwyn, 35, of Corinth, Texas, who pleaded guilty on Jan. 31, 2023, to one misdemeanor count of entering and remaining in a restricted building or grounds without lawful authority. That is a relatively minor offense, but Walton imposed a 60-day jail sentence in June 2023 with these ongoing conditions on his online reading and speech.

Walton reportedly noted that Goodwyn spread “disinformation” during a broadcast of “Tucker Carlson Tonight” on March 14, 2023, and ordered that Mr. Goodwyn’s computer be subject to “monitoring and inspection” by a probation agent to check if he spread Jan. 6 disinformation during the term of his supervised release.

After accepting the plea to a single misdemeanor, Walton expressed scorn for Goodwyn appearing “gleeful” on Jan. 6 and his “egging on” other rioters. He asked his defense counsel “why I should feel that he doesn’t pose a risk to our democracy?”

As a condition for supervised release, DOJ pushed the monitoring conditions and found a judge who seemed eager to impose it.

The order reflects the utter impunity shown by the Justice Department in its pursuit of January 6th defendants. Justice Department official Michael Sherwin proudly declared in a television interview that “our office wanted to ensure that there was shock and awe … it worked because we saw through media posts that people were afraid to come back to D.C. because they’re, like, ‘If we go there, we’re gonna get charged.’ … We wanted to take out those individuals that essentially were thumbing their noses at the public for what they did.”

Sherwin was celebrated for his pledge to use such draconian means to send a message to others in the country. (Sherwin has left the Justice Department and is now a partner at Kobre & Kim).

Walton was rebuked by the United States Court of Appeals for the District of Columbia for a surveillance order of Goodwin to detect any spreading of “disinformation” or “misinformation.”

In my new book, “The Indispensable Right: Free Speech in an Age of Rage,” I discussed concerns over the cases like Goodwyn’s and their implications for free speech. I participated in the coverage on January 6th and criticized President Trump’s speech while he was giving it. I disagreed with the legal claims made to oppose certification. However, the “shock and awe” campaign of the Justice Department, in my view, has trampled on free speech rights in cases that range from Goodwyn to the prosecutions of Trump himself.

Many of us were relieved when appellate judges (Gregory Katsas, Neomi Rao, and Bradley Garcia) rebuked Walton and held that “[t]he district court plainly erred in imposing the computer-monitoring condition without considering whether it was ‘reasonably related’ to the relevant sentencing factors and involved ‘no greater deprivation of liberty than is reasonably necessary’ to achieve the purposes behind the sentencing.”

They sent the case back but, to the surprise of few, Judge Walton proceeded to double down on the monitoring while implausibly declaring “I don’t want to chill anyone’s First Amendment rights.”

For some reason, Walton believes that barring an individual from reviewing and engaging in political speech does not “chill” his First Amendment rights.

Most of us were appalled by the riot and the underlying views of figures like Goodwyn, who is a self-proclaimed member of the Proud Boys. He was rightfully arrested and should be punished for his conduct. The question is not the legitimacy of punishment, but the scope of that punishment.

Prosecutor Brian Brady detailed how the Justice Department has in place a new system using artificial intelligence to monitor the reading and statements of citizens like Goodwyn. The Justice Department brushed aside the free speech concerns since Goodwyn remains under court supervision, even though he pleaded guilty to only a single misdemeanor.

Brady described a virtual AI driven thought program. The justification was that Goodwyn refused to abandon his extreme political views:

“Throughout the pendency of Goodwyn’s case, he has made untruthful statements regarding his conduct and the events of the day, he has used websites and social media to place targets on police officers who defended the Capitol, and he has used these platforms to publish and view extremist media. Imposing the requested [monitoring] conditions would protect the public from further dissemination of misinformation… [and] provide specific deterrence from him committing similar crimes.”

So now federal courts can use a single misdemeanor for unlawful entry in a federal building for less than 40 seconds to “protect the public from … dissemination of misinformation” on the government.

That was all Walton needed to hear. Relying on a record supplied by the Justice Department, Walton said in the hearing that Goodwyn is still engaging “in the same type of rhetoric” that fomented the Jan. 6 violence. He added that he was concerned about Goodwyn spreading “false narratives” when we are “on the heels of another election.”

Walton merely added the DOJ record to his renewed sentencing conditions.

Defense counsel then returned to the D.C. Circuit to seek an emergency stay but Judges Florence Pan and Bradley Garcia denied the motion, holding that “Appellant has not satisfied the stringent requirements for a stay pending appeal” to prevent further “false narratives.”

That drew a pointed dissent from Judge Gregory Katsas who stated:

Daniel Goodwyn pleaded guilty to one count of knowingly entering or remaining in a restricted building or grounds, in violation of 18 U.S.C. § 1752(a)(1). Goodwyn entered the Capitol and remained inside for a total of 36 seconds. He did not use force to enter, did not assault police officers, and neither took nor damaged any government property. When police instructed Goodwyn to leave the building, he did so.

…

On appeal, this Court vacated the condition … We further instructed the district court, if it wished to impose a new computer- monitoring condition on remand, to “explain its reasoning,” to “develop the record in support of its decision,” and to ensure that the condition complies with section 3583(d) and with the Constitution.

The district court reimposed the same condition on remand. In an oral hearing, the court said that Goodwyn had made statements on social media that “can be, it seems to me, construed as” urging a repeat of January 6, particularly “on the heels of another election.” In its written order, the court elaborated on what it called Goodwyn’s “concerning online activity.” This included posting exhortations to “#StopTheSteal!” and “#FightForTrump,” soliciting donations to fund his travel to Washington, posing for a livestream while inside the Capitol, confirming his presence there by text, and tweeting opinions such as: “They WANT a revolution. They’re proving our point. They don’t represent us. They hate us.” Id. at 3–4. In addressing what the court described as Goodwyn pushing “false narratives” about January 6 after-the-fact, the court, quoting from the government’s brief, led with the fact Goodwyn “sat for an interview with Tucker Carlson on Fox News Channel.” Id. at 4. Finally, in concluding that computer monitoring was reasonably related to Goodwyn’s offense, the court reasoned that monitoring would prevent Goodwyn from raising funds to support potential future crimes and would separate him “from extremist media, rehabilitating him.”

Judge Katsas stated that Goodwyn was likely to prevail on the merits and that his colleagues allowed the denial of First Amendment rights to continue in the interim.

The Walton order reflects the erosion of support for the First Amendment, even on our courts. It is reminiscent of our previous discussion of how courts have criminalized “toxic ideologies” as part of the crackdown on free speech in the United Kingdom.

Here is the D.C. Circuit order: United States v. Goodwyn

Category:

Tagged with:

Smith is No Longer in a Hurry: Special Counsel Moves To Slow Down District Court Judge

By Jonathan Turley | August 9, 2024

For over a year, Special Counsel Jack Smith has made one element the overriding priority in his prosecution of former president Donald Trump: speed. Smith repeatedly moved to curtail Trump’s appellate rights and demand expedited appeals to try to secure a conviction before the election. In that effort, he found an equally motivated judge in U.S. District Judge Tanya S. Chutkan, who virtually turned her court into a rocket docket to try Trump. Now, in a neck-breaking change of direction, Smith is trying to slow down Chutkan who appears again ready to pull out the stops in this case.

After the mandate in the case was returned to her, Judge Chutkan immediately resumed her high-speed scheduling to look at the pre-trial issues after the Court reversed her earlier rulings on the basis of presidential immunity.

The past problem with a court making speed the priority is that it does not allow much time to create a record. The remand will now require Judge Chutkan to do so on the question of what charges and evidence may be barred under the ruling in Trump v. United States.

As it has in the past, the c=Court adopted a three-tiered approach to presidential powers based on the source of a presidential action. Chief Justice John Roberts cited Youngstown Sheet and Tube Co. v. Sawyer, in which the court ruled against President Harry Truman’s takeover of steel mills.

In his famous concurrence to Youngstown, Justice Robert Jackson broke down the balance of executive and legislative authority between three types of actions. In the first, a president acts with express or implied authority from Congress. In the second, he acts where Congress is silent (“the zone of twilight” area). In the third, the president acts in defiance of Congress.

In this decision, the Court adopted a similar sliding scale. It held that presidents enjoy absolute immunity for actions that fall within their “exclusive sphere of constitutional authority” while they enjoy presumptive immunity for other official acts. They do not enjoy immunity for unofficial or private actions.

Only hours after receiving the mandate, Judge Chutkin scheduled an Aug. 16 conference to lay out the schedule and issues going forward. The former version of Jack Smith would have been delighted. He did not even see the need for the right for an en banc appeal in previously pushing for a pre-election trial.

Now, however, Smith is telling Judge Chutkin to slow down already.

Smith told the court that “The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States. Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision.”

He has asked for a three-week delay to further consider what he wants to do. It is not clear if the press and pundits will now charge Smith with “slow walking” the case.

The question is whether Smith is considering a drastic move in light of the calendar and the ruling. There is, of course, always the possibility that he either throws in the towel or opts for a post-election trial. That would certainly go against the grain of Smith, who has always pushed both the law and the calendar to the breaking point. However, as some of us have been arguing for months, he may no longer view a trial as a plausible objective.

There is also the possibility that Smith will do something that some of us have discussed over the last year: pare down his case. Smith has always been undone by his appetite. As shown in his 8-0 reversal in his conviction of former Virginia Governor Bob McDonnell, Smith has rarely shown moderation as a prosecutor.

His overloaded criminal complaints created this disaster for his team. In Florida, Smith unwisely loaded up the prosecution with controversial charges on the retention of classified material. It not only triggered difficult challenges but slowed the case to a crawl as the parties dealt with classification laws. Had he proceeded solely on obstruction charges, he might have secured his trial before the election (and before the recent ruling on immunity). Even if the reduced case was heard by the Court on immunity, an obstruction case would have been far stronger for Smith.

The same is true with the D.C. case. Smith loaded up the case to raise the January 6th speech and other issues. Most were unnecessary, but Smith used his press conference to denounce the January 6th riot.

A three-week delay will give Smith ample time (in addition to the weeks following the Supreme Court decision) to deliberate. However, it will take roughly a month off the calendar for just internal debate with the election only three months away.

So, even with a judge who appears chomping at the bit to resume the fast track to trial, Smith now wants more time. Even before this request, it was hard to see how a trial could be held before the election. Now it seems a virtual certainty that any trial will have to await the results of the election. As I wrote in 2023, the odds were against a federal trial before the election, which would convert the voters into the largest jury in history.

Category:

Crime, Law

Tagged with:

The Justice Department Makes The Case Against Hunter Biden . . . and Itself in California

By: Jonathan Turley | August 8, 2024

Special Counsel David Weiss appears to have finally made the long-awaited case exposing years of concealment and political corruption. No, it is not the case against Hunter Biden. The allegations of tax fraud in California are obvious and unavoidable. Weiss just made the case against the Justice Department and himself in protecting Hunter Biden from the most damaging charges of being an unregistered foreign agent. In a new filing, Weiss released evidence on Hunter seeking money to advance the interests of a Romanian on United States policy.

I have previously testified on the Foreign Agents Registration Act and have previously written about the disturbing disconnect in the treatment of the President’s son as opposed to figures like Paul Manafort. The charge was always one of the greatest fears of the White House. If Hunter Biden was a foreign agent, it would magnify the influence peddling scandal and further link his conduct to work of his father as vice president and later president.

What was previously known about millions received from China, Russia, and other countries made such a charge obvious. In the past, the Justice Department has used the charge early and often in high-profile cases to pressure defendants and force cooperation or plea agreements. During the Trump Administration, an official could not go to Epcot without drawing a FARA charge from DOJ.

This charge has been a favorite of the DOJ before the President’s son was implicated in a massive influence peddling scheme with foreign figures.

Here is the definition used in such cases:

A “foreign agent” is defined as “(1) any person who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal, and who directly or through any other person— (i) engages within the United States in political activities for or in the interests of such foreign principal; (ii) acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal; (iii) within the United States solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal; or (iv) within the United States represents the interests of such foreign principal before any agency or official of the Government of the United States; and (2) any person who agrees, consents, assumes or purports to act as, or who is or holds himself out to be, whether or not pursuant to contractual relationship, an agent of a foreign principal as defined in clause (1) of this subsection.”

For years, I have expressed alarm at the special treatment afforded to Hunter Biden on the charges. Many of us have also criticized Weiss for allowing the most serious tax charges to expire despite being able to extend the statute of limitations. He has yet to offer a compelling reason why prosecutors would ever allow viable felony charges to expire when they could have extended that period.

Now, Biden is seeking to avoid conviction under the tax charges in California. He is repeating the claims that failed in his recent gun violation. He is claiming that he was an addict and not responsible for his criminal conduct, even though he was flying around the world collecting millions from foreign sources.

To rebut that claim, Weiss’ team said they plan to introduce evidence showing his sophisticated scheme to tap foreign sources interested in influencing the government and federal policy.

In the filing below, Weiss opposes the Biden team effort to exclude the evidence of his working for the Romanians. Senior assistant special counsel Derek Hines writes in the filing that “[t]he evidence of what the defendant agreed to do and did do for [the businessman] demonstrates the defendant’s state of mind and intent during the relevant tax years charged in the indictment. It is also evidence that the defendant’s actions do not reflect someone with a diminished capacity, given that he agreed to attempt to influence U.S. public policy and receive millions of dollars pursuant to an oral agreement.”

That sounds a lot like seeking the work of a foreign agent. Here is the language from FARA:

“The first category of evidence the defendant seeks to exclude is any “reference to allegations that Mr. Biden (1) acted on behalf of a foreign principal to influence U.S. policy and public opinion . . .” Motion at 3 (emphasis added). The government does not intend to reference allegations at trial. Rather, the government will introduce the evidence described above, including that the defendant and Business Associate 1 received compensation from a foreign principal who was attempting to influence U.S. policy and public opinion and cause the United States to investigate the Romanian investigation of G.P in Romania.” (emphasis added)

It is a curious argument. It is akin to saying that we know that he stole the car because he used it in the kidnapping. It leaves most people wondering why you did not charge on the kidnapping crime.

The fact is that this is only one of an array of such contracts that have been detailed by the House Oversight Committee and other House committees. The other foreign dealings reportedly involved Hunter reaching out to government officials while his father was vice president. That includes the controversy over Joe Biden’s sudden decision to issue an ultimatum to the Ukrainian government.

In a 2018 interview at the Council on Foreign Relations, Biden bragged that he unilaterally withheld a billion dollars in US aid from the Ukrainians to force them to fire prosecutor general Viktor Shokin.

The Ukrainians balked, but Biden gave them an ultimatum: “I looked at them and said, ‘I’m leaving in six hours. If the prosecutor is not fired, you’re not getting the money.’ Well, son of a bitch. He got fired.”

However, a State Department memo is shedding disturbing light on that account and shredding aspects of Biden’s justification for the action. It directly contradicts Biden’s insistence that he took this extraordinary stand because there was little hope for the anti-corruption efforts in Ukraine if Shokin remained prosecutor.

The Oct. 1, 2015, memo summarizes the recommendation of the Interagency Policy Committee that was handling the anti-corruption efforts in Ukraine: “Ukraine has made sufficient progress on its reform agenda to justify a third guarantee.” One senior official even complimented Shokin on his progress in fighting corruption. So, Biden was told to deliver on the federal aid but elected to unilaterally demand Shokin be fired.

In testimony from Devon Archer, a business associate of Hunter Biden, we learned that Burisma executives made the removal of Shokin a top priority and raised it with Hunter. He described how the need to neutralize Shokin was raised with Hunter and how “a call to Washington” was made in response. While Archer also said that “the narrative spun to me was that Shokin was under control,” he and others also heard concerns over Shokin and the risks of the investigation.

Other transactions directly requested intervention on matters being addressed by the Obama-Biden Administration.

So, now, the Justice Department is citing some of these dealings to show a conscious and premeditated effort to shake down foreigners to influence U.S. policy. Weiss now maintains that “The defendant did receive compensation from a foreign principal to attempt to influence U.S. policy and public opinion, as alleged in the indictment, and this evidence is relevant.”

They have made more than the case against Hunter Biden. They have made a conclusive and overwhelming case against themselves in slow walking and minimizing charges against the President’s son.

Here is the filing: gov.uscourts.cacd.907805.181.0

Category:

LGBTQ+ AND TRANSGENDER, Political, Sports

Tagged with:

Olympic “Christ” Threatens to Sue Critics Over “Last Supper” Backlash

By: Jonathan Turley | July 31, 2024

Barbara Butch, the LGBTQ activist who was the center figure in the controversial “Last Supper” Paris Olympic scene is threatening to sue those criticizing her. Butch played the role (wearing a Christ-like halo) viewed by many as a spoof on Christ in the Last Supper. The creators insist that they were going for a type of “pagan party” of Olympic gods and sent a message of tolerance. Art experts have supported the creators and pointed to paintings that inspired the pagan motif. That is not exactly what was seen by millions of Christians who were deeply insulted by the parody.

The question is not the intent of the creators, but the intent of critics in denouncing the display and its participants.

The threat of legal action would not be especially serious in the United States where opinion is given robust protection in both criminal and civil cases. In France, however, free speech is in a free fall with the left pushing for the censorship and criminalization of an ever-expanding range of political and religious speech.

The ceremony itself had some truly powerful and stunning elements. I enjoyed the mix of music and imagery as well as the effort to show the diversity of France. However, other elements were more divisive or excessive. For example, the producers decided to use the ceremony to feature such elements as three young people hooking up for a “ménage à trois.” With many families watching with kids, many of us thought the scene was inappropriate for such an event. However, it was the supper scene that led to protests from clerics and critics. While claiming a message of “tolerance,” the scene was taken as yet another slap at religious elements in society. That is a debate that has continued to rage, particularly on the Internet.

Audrey Msellati, Butch’s attorney, posted a statement on Butch’s Instagram account that the DJ and activist will seek legal action after being “the target of an extremely violent campaign of cyber-harassment and defamation.” She is promising to file “several complaints against these acts.”

Clearly, any direct and intentional threats of violence against Butch should be prosecuted, as they can be prosecuted in the United States. However, the French laws sweep far more broadly in criminalizing opinion and what I have called “rage rhetoric.”

In France, such complaints are often criminal matters. In my new book, “The Indispensable Right: Free Speech in an Age of Rage,” I discuss the collapse of free speech rights in France as well as other European countries. This anti-free speech wave has now reached our shores. It has many allies in our own anti-free speech movement. American leaders such as Hillary Clinton have actually enlisted the help of European censors to seek to silence American citizens.

Once the cradle of individual liberty, France long ago became a global leader in the crackdown on free speech.

These laws criminalize speech under vague standards referring to “inciting” or “intimidating” others based on race or religion. For example, fashion designer John Galliano has been found guilty in a French court on charges of making anti-Semitic comments against at least three people in a Paris bar. At his sentencing, Judge Anne Marie Sauteraud read out a list of the bad words used by Galliano to Geraldine Bloch and Philippe Virgitti, including using ‘dirty whore” in criticism.

In another case, the father of French conservative presidential candidate Marine Le Pen was fined because he had called people from the Roma minority “smelly.” A French teenager was charged for criticizing Islam as a “religion of hate.”

I also wrote earlier about the prosecution of famous actress Brigitte Bardot for saying in 2006 that Muslims were ruining France in a letter to then-Interior Minister (and later President) Nicolas Sarkozy. Bardot, an animal rights activist, was repeatedly hit with such criminal complaints for criticizing different groups.

While wildly popular with many in Congress, French President Emmanuel Macron has consistently worked against free speech rights.

That is why the homage in the Olympics to Liberté rang hollow for many of us in the free speech community. The French leaders have long been hypocritical in claiming to support free speech, such as marching in support of the Charles Hebdo magazine after the massacre after cracking down on its editors and writers.

Thomas Jolly, the artistic director for the opening ceremony of the Olympics, clearly wanted to be provocative in these scenes. He succeeded. Clearly, such provocative elements will spur debate and discussion, including heated opinions. Use of criminal sanctions for those expressing opinion would make a mockery of the display of fealty to French liberties that Jolly features in his ceremony.

Category:

Tagged with:

Was Donald Trump the Victim of White Privilege? A Democratic Member Wants to Know

By: Jonathan Turley | July 23, 2024

For most of us, this election could not become more confusing. However, Rep. Jasmine Crockett (D., Tx.) may have added a whole new level of confusion for many in suggesting that Donald Trump may have been the latest victim of systemic racism among law enforcement in the United States.

Trump previously cited his alleged abuse in the criminal justice system as a point of shared experience with some in the black community. Crockett, however, seems to be willing to go further in suggesting that he may be the latest victim of a racist law enforcement system.

In the hearing with Secret Service Director Kimberly Cheatle, the failure to stop and hold Thomas Crooks was raised by both parties in an unprecedented failure of security. Crockett then got her chance and suggested that Trump may have come close to dying at the hands of white privilege.

“I want to talk about training and the fact that there was a little bit of confusion between this suspicious person, and this perceived threat situation, and it seems like a different analysis is being done. One of my questions is what training your officers are getting on bias.

I’ve learned over and over again, dealing with law enforcement, that there’s generally no perception of threat when it’s a young white male, even if he’s carrying a long gun. Yet a lot of times, at least in this country, when it comes to law enforcement, there’s a perception of threat simply because a person has a little bit more melanin in their skin.

…Often times, one of the things that we’ve consistently advocated for on my side — and when I say my side, I mean when we’re faced with a tragedy where law enforcement has made a mistake — is bias training and whether or not our officers are getting it. So I’m curious, in some of the training that you’re talking about that’s part of your budget, is bias training part of it?”

Cheatle responded with “Yes, that’s true.” (An apparent response to the training element).

Notably, Crockett began by getting Cheatle to acknowledge that this was not a failure due to DEI, or Diversity Equity and Inclusion, policies. She then suggested that further DEI training may be needed in light of the assassination attempt.

To be clear, there is no evidence that Crooks was allowed to walk away after being spotted with a “long gun.” The current theory is that Crooks hid the gun before the event.

Moreover, he was identified as a possible threat due to being found with a golf range finder. However, that was not considered a barred or threatening device by the Secret Service.

Yet, Trump may find common ground here with Vice President Kamala Harris who has long maintained that “We do have two systems of justice” and has added:

“I don’t think that most reasonable people who are paying attention to the facts would dispute that there are racial disparities and a system that has engaged in racism in terms of how the laws have been enforced. It does us no good to deny that. Let’s just deal with it. Let’s be honest. These might be difficult conversations for some, but they’re not difficult conversations for leaders, not for real leaders.”

Trump may be willing to have the “difficult conversation” as the now purported victim of white privilege in the dismissal of would-be presidential assassins.

Category:

Tagged with:

Going Full Trump: Hunter Biden Challenges the Constitutionality of the Weiss Appointment

By: Jonathan Turley | July 19, 2024

We previously discussed how Hunter Biden adopted the arguments of the National Rifle Association (NRA) and other gun rights groups to challenge the law that his father has championed as a key gun control reform. In his effort to challenge his various charges, Hunter Biden has gone full Trump. Now, Hunter has adopted the Trump argument that special counsels are unconstitutional in seeking to toss out all of the charges by Special Counsel David Weiss, it is the very argument that Democrats and liberal law professors have denounced as meritless and menacing. Having recently embraced the conservative justices in challenging gun laws, Hunter is now channeling Justice Clarence Thomas on the unconstitutionality of special counsel appointments — an argument that his father denounced as wrong and “specious.”

I recently discussed the decision of Judge Aileen Cannon to strike down the Florida case against former President Donald Trump. Law professors ridiculed the concurrence of Justice Thomas in arguing that special counsels lack a constitutional foundation.

Biden is now asking the federal courts to adopt the Thomas position. On Thursday, courts in California and Delaware were asked to dismiss the criminal tax and gun cases against Biden.

The motions track the analysis of Judge Cannon and argue that “the Attorney General relied upon the exact same authority to appoint the Special Counsel in both the Trump and Biden matters, and both appointments are invalid for the same reason.”

I wrote in my column that the challenges seem to draw courts into the Wonderland of Special Counsels.

In “Alice’s Adventures in Wonderland,” the Mad Hatter asks Alice, “Why is a raven like a writing desk?” It turned out that the Mad Hatter had no better idea than Alice.

In her 93-page order, U.S. District Judge Aileen Cannon seemed to face the same dilemma when she asked Special Counsel Jack Smith why a private citizen is like a confirmed U.S. Attorney.

However, a key difference between Smith and Weiss is that it could lead these courts to asking, “why is a Weiss like a Smith?” The extent that he is not could prove a critical distinction. Weiss is a Senate confirmed U.S. Attorney where Smith was a private citizen plucked by Merrick Garland from the general population for the position.

Biden is seeking to brush over that Mad Hatter anomaly:

“The constitutional flaw at the center of the Special Counsel’s appointment is that Congress has not established the office of a Special Counsel. Given that Congress requires a U.S. Attorney to be nominated by the President and confirmed by the Senate, it makes no sense to assume that Congress would allow the Attorney General to unilaterally appoint someone as Special Counsel with equal or greater power than a U.S. Attorney. That is what has been attempted here.”

Clarence Thomas is beaming.

Category:

Tagged with:

“They Lie and People Die”: Carnegie Mellon Professor Claims Trump Assassination Attempt was “Staged”

By: Jonathan Turley | July 18, 2024

Carnegie Mellon University Professor Uju Anya has joined the ranks of academics spreading the conspiracy theory that the assassination attempt on former President Donald Trump was “staged.” As for the killing and wounding of bystanders, Anya explained that “that’s exactly what they do.” We previously discussed other academics who have spread this conspiracy theory. However, few are willing to go as far as Professor Anya in explaining how the other victims were used to make the staging more plausible. Anya declared:

“It was staged. Like a stupid Tubi movie set in the Bronx with palm trees in the background. They lie, and people die. That’s exactly what they do

…That’s the record. Whatever ‘attack’ on him they set up to stoke his followers’ fears and sentiments threat and persecution has now cost lives.

…And people died behind this farce. Actual people’s lives gone for them to stage this stupid show. People dying doesn’t make the attack any less staged. Someone who thought the attack was real could’ve killed others trying to prevent harm. Also, someone could’ve shot the shooter to hide the plot.”

The faculty bio states that Anya is an Associate Professor of Second Language Acquisition. She describes herself as

“a scholar of language learning and Black experiences in multilingualism. My primary fields of

inquiry are critical applied linguistics, critical sociolinguistics and critical discourse studies examining race, gender, sexual and social class identities in new language learning through the multilingual journeys of African American students.”

Likewise, in a now since-deleted Threads posting, Professor of Psychology at San Diego Mesa College Inna Kanevsky also fueled the baseless conspiracy theory. She posted

“‘He took a bullet for his country!’ No, he didn’t. He took it, like everything else he

took and keeps taking, for himself. For his own personal aggrandizement.”

Professor Anya has long been a controversial figure including her wish that Queen Elizabeth would die a long “excruciating” death. She later doubled down on the hateful statements.

She also tweeted out crude remarks about the 2022 elections: “contrary to all these major media outlets, the red wave coming is my period on Friday.”

So, these and other faculty believe that Trump enlisted a kid who was thrown out of his high school shooting club as a bad shot to wing him at 130 yards from a sloped position. The conspiracists also decided to kill or wound some supporters to make the staging look real. In our age of rage, this all makes sense to these professors.

I agree with Professor Anya that such political statements are protected speech. However, her unhinged and hateful commentary exposes the radicalism of many faculty in higher education today.

Category:

Crime, Education, Law

Tagged with:

Trump’s Churchillian Moment: How the Near Miss Assassination Hit the Mark with Press and Pundits

BY: Jonathan Turley | July 17, 2024

Winston Churchill once famously said that “nothing in life is so exhilarating as to be shot at without result.”

For Donald Trump, the failed assassination attempt in Pennsylvania could prove politically exhilarating. After rising with a fist pump and a call to fight on, Trump seems to have gone from being a movement to a mythological figure with his supporters. All he needs now is a big blue ox named Babe to return to the campaign trail.

This assassination attempt should also concentrate the minds of everyone on the escalating rhetoric in this campaign, particularly the media in maintaining inflammatory narratives. Yet, the hateful and unhinged language has continued unabated from academics declaring that the assassination attempt was staged to those who complain that the only problem was that Thomas Matthew Crooks missed.

For years, Democrats have repeated analogies of Trump to Hitler and his followers to brownshirted neo-Nazis. Indeed, defeating Trump has been compared to stopping Hitler in 1933. The narrative began as soon as Trump was elected when the press and pundits uniformly and falsely claimed that Trump had praised neo-Nazis and Klansmen in 2017 as “fine people” in Charlottesville.

Watching Trump’s statement at the time, it was clear to most of us that Trump condemned the neo-Nazis and that the statement about “fine people on both sides” was in reference to the debate over the removal of historic statues. It took six years for Snopes to finally have the courage to do a fact check and declare the common attack to be false.

It did not matter. The press and politicians have hammered away at the notion that Trump is seeking to end democracy and that everyone from gay people to reporters will be “disappeared.”

After the Supreme Court’s recent ruling on presidential immunity, Rachel Maddow went on the air with a hysterical claim that “death squads” had just been green lighted by conservatives. Democratic strategist Jame Carville insists that Trump’s reelection will bring “the end of the Constitution.”

It is all what I call “rage rhetoric” in my new book, “The Indispensable Right: Free Speech in an Age of Rage.” The book explores centuries of rage politics and political violence. This is not our first age of rage but it could well be the most dangerous.

Two years before the assassination attempt, I appeared before the Senate Judiciary Committee to testify on the expansion of domestic terrorism investigations. Democrats were seeking to pressure the FBI to focus on far-right groups as potential terrorist groups. The use of political views rather than conduct has been used historically to crackdown on groups from socialists to anarchists to feminists.

The narrative that the threat of violence is coming primarily from the Right is demonstrably false but consistently echoed in the media. We have seen a growing level of leftist violence in the last decade. That includes riots in cities like Portland and Seattle where billions of dollars of damage occurred, hundreds of officers injured, and many citizens killed. In 2020 alone, 25 people were killed in the protests.

The Democrats often raise the Jan. 6th riot, and it is important to acknowledge that the damage extended to an attack on our constitutional process. However, the preceding protest around the White House caused more injuries and more property damage. Then President Trump had to be removed to a safe location as Secret Service feared a breach of the White House.

There were a reported 150 officers injured (including at least 49 Park Police officers around the White House) in the Lafayette Park riot. Protesters caused extensive property damage including the torching of a historic structure and the attempted arson of St. John’s Church.

Mass shootings by leftist gunmen have repeatedly occurred but those are treated as one off while any conservative shooter is part of a pattern of right-wing violence.

Keith Ellison, the Democratic attorney general of Minnesota, mocked the notion of liberal violence. In one tweet, he declared “I have never seen @BernieSanders supporters being unusually mean or rude. Can someone send me an example of a ‘Bernie Bro’ being bad. Also, are we holding all candidates responsible for the behavior of some of their supporters? Waiting to hear.”

Republican Representative Steve Scalise of Louisiana replied dryly: “I can think of an example.” Scalise was severely wounded at the 2017 shooting at a congressional baseball game practice by a Sanders supporter.

Ellison was a particularly ironic Democratic politician to repeat this mantra. When he was the Democratic National Committee deputy chair, Ellison praised Antifa, a violent anti-free speech group that regularly attacks conservatives, pro-lifers, and others. Ellison said Antifa would “strike fear in the heart” of Trump. This was after Antifa had been involved in numerous acts of violence and its website was banned in Germany.

Ellison’s son, Minneapolis City Council member Jeremiah Ellison, declared his allegiance to Antifa in the heat of the protests this summer. When confronted about Antifa’s violence, then House Judiciary Chairman Jerry Nadler denied that the group existed. Likewise, Joe Biden has dismissed objections to Antifa as just “an idea.”

In the meantime, Biden has called Trump and his supporters “enemies of the people.” He recently said that the threat to democracy was so great that debates are no solution: “we’re done talking about the debate, it’s time to put Trump in a bullseye.”

Even after the attempted assassination of Justice Brett Kavanaugh, the media has failed to see a pattern while stoking the claim of a right-wing violent movement.

In the meantime, Democrats previously filed to strip Secret Service protection from Trump. The former Chair of the J6 Committee and the ranking Democrat on the House Homeland Security Committee introduced the legislation, called Denying Infinite Security and Government Resources Allocated toward Convicted and Extremely Dishonorable (DISGRACED).

The press and pundits continue to tell Americans that Trump and his supporters are going to kill democracy and probably those they love. While most people dismiss the rage rhetoric, there are some who take it as a license to take the most extreme action.

We are still learning about Thomas Matthew Crooks, 20, who was killed after trying to assassinate Trump. A registered Republican, Crooks gave money to ActBlue to support Democratic candidates. Yet, we know him all too well. He is likely to be found to be a lonely, unhinged individual who found meaning in an attempted political murder.

Thomas Crooks like Nicholas Roske (who tried to kill Justice Kavanaugh) are the faces that watch from the political shadows. They hear leaders telling them to stop the Nazis before democracy dies . . . and they believe them.

As for Democrats, the anger evident every night on cable networks may reflect a degree of insecurity about becoming the very thing that they are campaigning against. It is time for the party to look around to take stock of its anti-democratic policies.

Democratic secretaries of state have sought to block not just Trump but third-party candidates from ballots to prevent voters from supporting them. They have called for cleansing ballots of over 120 other Republicans. They have supported censorship, blacklisting, and other attacks on free speech.

As a lifelong Democrat, I have repeatedly asked what we have become in this age of rage. If we embrace groups like Antifa, oppose free speech, and cleanse ballots, we will have little beyond our rage to sustain us.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”

Category:

Tagged with:

Post: Jack Smith is Willing to Try Trump Up to Inauguration Day

By: Jonathan Turley | July 3, 2024

The Washington Post is reporting that Special Counsel Jack Smith may try to convict former president Donald Trump all the way through the election and up to 11:59 am on January 20th. After the oath, the Justice Department has long maintained that it will not prosecute a sitting president.

There is also a long-standing policy of the Justice Department to abstain from criminal proceedings before an election to avoid the appearance of trying to influence the outcome. Smith has signaled that he will discard that policy and that he is prepared to try Trump not only up to the election but through the election.

He is now reportedly willing to try Trump up to January 20th.

Smith has made trying Trump before the election the overriding priority in his two cases against the former president. He failed repeatedly to force a shorter schedule on appeal before the Supreme Court. His arguments were revealing. He suggested that the public should have a possible conviction before they cast their votes. It flipped the DOJ policy on its head in openly seeking to influence the election.

The Supreme Court was not persuaded, though Smith did succeed in effectively cutting the appellate process a bit shorter. He then lost in spectacular fashion before the Court on presidential immunity.

According to the Post, he is not giving up the ghost and is now committed to a trial running up to Inauguration Day: “Current officials, speaking on the condition of anonymity, expressed … that if Trump wins the election, the clock on the two federal cases against him would keep ticking until Jan. 20, when he would be sworn in as the 47th president.”

Even with Smith’s continued push to try Trump at all costs before the Inauguration, it could be a challenge. There is a 30-day period before the Supreme Court case is effectively returned to district court.

Judge Tanya Chutkan has been highly favorable for Smith and highly motivated in seeking a trial before the election. That led to problems highlighted in the recent opinion. Chutkan was so motivated that she failed to create an adequate record on these issues. That record will now have to be established. If Chutkan rules as she did earlier, she is expected to be hostile to Trump’s claims on his conduct falling within official functions. However, she will need to make the record and her decision could again be appealed. The Court left clear guidelines that will make it difficult for Chutkan to, again, dismiss such claims.

Moreover, the pre-trial motions were stopped with the latest appeal. They must now be addressed. Finally, she pledged to give the Trump team over 80 days for preparation after the appeal, which will be added to the 30 days, the period for the remand record, and the pre-trial motions.

There is also the need for the court and Smith to deal with the Fischer decision limiting the use of the obstruction charges — impacting two of the four counts against Trump. As I have previously written, Smith has various options but could trigger a new reversal on appeal if he follows his signature inclination to resist legal limits.

In other words, Smith’s appetite for a trial before the Inauguration may exceed his ability to force that expedited schedule.

Category:

Tagged with:

Too Clever By Half: Justice Jackson’s Suggested Path Forward for Jack Smith Could Lead to Another Reversal

By: Jonathan Turley | July 1, 2024

The Supreme Court’s decision in Fischer v. United States rejecting the use of obstruction of legal proceedings against January 6th defendants will potentially impact hundreds of cases. For some, it may lead to dismissals or, in the cases with multiple charges, resentencings. One of those cases that will be impacted is the pending prosecution of former president Donald Trump who is facing four charges, including two obstruction counts. However, it is not clear if Special Counsel Jack Smith will yield to the decision or possibly take the dubious path laid out by Justice Ketanji Brown Jackson in her concurrence.

Smith has long tended to push the law to the breaking point to bag defendants. That was the case when his conviction of former Virginia Governor Robert F. McDonnell was unanimously reversed as overextending another law.

It is doubtful that he will go quietly into the night after the Fischer decision. In most cases, a prosecutor would go back and secure a superseding indictment in light of the loss of the obstruction claims. Those claims were central to the narrative of the government under the current indictment.

That is not Smith’s style. He may decide to push even harder for a trial before the election on the remaining counts. Smith has made the trial before the election an overriding priority throughout his appointment. He also has a very favorable and motivated judge in United States District Judge Tanya Chutkan.

He could also take a not-so-subtle hint from Jackson in her concurrence. Jackson supported the majority in finding that the obstruction provision, Section 1512(c), was enacted after the Enron case to address the destruction of documents and records.

However, in a single justice concurrence, she added a way that Smith and other prosecutors might still be able to shoehorn January 6th into a Section 1512 offense:

“That official proceeding [Congress’s certification of the Electoral College vote] plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.”

Notably, no other justice joined Jackson in the concurrence. However, Smith and Chutkan could reason that it was not expressly rejected and presumably, the three justices in dissent would support the broader reading since they were willing to sign off on the ultimate extension of the obstruction of justice statute. That includes Justice Amy Coney Barrett.

However, that still leaves less than a majority and an application that runs against the grain of the opinion. Just saying that a proceeding involves “certain records” is transparently artificial and forced. Even the submission of an alternative slate of electors is not the destruction of electors certified by the secretaries of state.

The federal law allows for challenges in Congress, which Democrats previously utilized without claims of insurrections or attacks on democracy. J6 Committee Chairman Bennie Thompson (D-Miss.), voted to challenge the certification of the 2004 results of President George W. Bush’s reelection; committee member Jamie Raskin (D-Md.) sought to challenge Trump’s certification in 2016. Both did so under the very law that Trump’s congressional supporters used in 2020. And Pelosi and Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) praised the challenge organized by then-Sen. Barbara Boxer (D-Calif.) in 2004.

Those challenges under the same loose theory could have been viewed as attempting to negate or destroy certifications from the states. It would likely, in my view, result in another reversal. It is, in my view, too clever by half.

That may not concern Smith who may still want to use the obstruction counts to increase the likelihood of convictions on the other counts. In such a circumstance, the overturning of the two obstruction convictions might still leave the conviction for conspiracy to defraud the United States and conspiracy against the rights of citizens.

We will see in the coming weeks, but Smith is likely waiting for the other shoe to drop in the Trump immunity case. That could add additional complications if the case is remanded by the Court for further proceedings. There is little time for a trial before November if the district court must hold hearings on claims that statements or actions were taken by Trump as part of his office.

Chutkan sought to meet Smith’s demand for a trial before the election by converting her court into a virtual rocket docket. The cost of the fast pace was that she created little record on these issues. That might have to be done in a remand and will exhaust additional days on the rapidly shrinking calendar for Smith.

Either way, Monday will throw the final card on the table for Smith and the Court will determine if what is left in his hand. It may not deter Smith. It often seems like both bad gamblers and special counsels tend to double down on weak hands. If history is any measure, Smith is likely to bet the farm on whatever remains.

The problem is that the farm does not belong to him.

Category:

Law

Tagged with:

Robert Hur Emerges as the Clear Winner in the Presidential Debate

By: Jonathan Turley | June 28, 2024

The presidential debate last night was chilling to watch as President Joe Biden clearly struggled to retain his focus and, at points, seemed hopelessly confused. The winner was clear: Special Counsel Robert Hur. For months, Democrats in Congress and the media have attacked Hur for his report that the president came across as an “elderly man with a poor memory.” Hur concluded that prosecuting Biden would be difficult because a jury would view him as a sympathetic figure of a man with declining mental capabilities. That was evident last night, and the question is whether a man who was too diminished to be a criminal defendant can still be a president for four more years.

Hur laid out evidence that President Biden had unlawfully retained and mishandled classified evidence for decades. However, he also concluded that “at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.” He found that “it would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness.”

What has followed is the usual pile-on in the media with legal analysts, press, and pundits denouncing Hur for his findings.

Hur likely does not anticipate any apologies even as commentators on CNN and MSNBC admit that there are now unavoidable questions of Biden’s ability to be the nominee.

Democrats have repeatedly insisted that Hur did not find Biden diminished and that he actually was impressed by his memory and mental acuity. Hur contradicted that in his own testimony before Congress.

Indeed, the denial campaign took on a bizarre character, particularly when Rep. Pramila Jayapal (D., Wash.) insisted that Hur “exonerated” Biden. Hur pushed back: “I need to go back and make sure that I take note of a word that you used, ‘exoneration.’ That is not a word that is used in my report and that is not a part of my task as a prosecutor.”

Jayapal shot back, “You exonerated him.”

Hur responded, “I did not exonerate him. That word does not appear in the report.”

The debate also further undermines the ridiculous effort of the Biden Administration to continue to withhold the audiotape of the Hur interview as privileged (despite saying that the transcript is not privileged).

The debate showed not only what Hur saw but why the Justice Department is making a clearly laughable privilege claim to delay any release of the audiotape until after the election.

Category:

Tagged with:

Cannon Fodder: The Media Piles on Federal Judge After Lionizing Manhattan Judge

By: Jonathan Turley | June 25, 2024

Below is my column in the New York Post on the vicious attacks being directed at Judge Aileen Cannon as she addresses pre-trial motions in the Florida prosecution of former president Donald Trump. The sheer hypocrisy in the media is overwhelming after denouncing any criticism of Judge Juan Merchan in the Manhattan prosecution. For Cannon, it is nothing short of a press pile-on.

Here is the column:

The politicians, the press, and pundits are in a feeding frenzy around Judge Aileen Cannon, the federal judge presiding in the Florida case against former President Donald Trump. There is a torrent of hit pieces and petty attacks on virtually every media platform. What is impressive is the complete lack of self-awareness over the hypocrisy of these attacks. Just a few weeks ago, the New York Times and other media outlets went into vapors when anyone uttered criticism of Manhattan Justice Juan Merchan in another Trump case.

In 2020, Judge Cannon was confirmed in a bipartisan vote, with the support of liberals such as Senator Patrick Leahy (D-Vt.) and Dianne Feinstein (D-Cal.). Now she is being denounced as a “partisan, petty prima donna, “wacko, crazy, loony, nutty, ridiculous, and outlandish,” and a “right-wing hack.” From the descriptions in the Washington Post, New York Times and virtually every mainstream media outlet, you would think that Cannon was a freak in the courtroom, raving uncontrollably at any passerby.

These critics often stress that she is an appointee of Trump, even though many Trump appointees have ruled against the former president on 2020 election issues. And these same figures denounced Trump for attacking the perceived political bias of Democratic nominees in some of his cases.

Cannon was randomly selected, as opposed to Merchan, who was hand-picked to try Trump even though he is a political donor to President Joe Biden and has a daughter who is a major Democratic operative. Yet these same figures denounced those who questioned Merchan’s refusal to step aside or criticized his rulings against Trump throughout the trial.

In reality, the “loose Cannon” spin is utterly disconnected with her actual rulings.

She has ruled for and against both parties on major issues. That includes the rejection of major motions filed by the Trump team and most recently challenged Trump counsel on their claims that the Special Counsel is part of “a shadow government.”

Notably, when Cannon recently rejected the main motion for dismissal by the Trump team, the Washington Post buried that fact in an article titled “Judge Cannon Strikes Paragraph in Trump Classified Document Indictment.” The suggestion was that the striking of a single paragraph was more newsworthy than insisting that Trump go to trial on these counts. (Also buried in the article is a recognition that the removal of this one paragraph “does not have a substantive effect on the case.”)

Most recently, the left expressed nothing short of horror that Judge Cannon allowed the Trump team to argue a point of constitutional law in a hearing. Scholars and former prosecutors (including former attorneys general) have argued that the appointment of special counsels like Smith are unconstitutional. This is a novel and intriguing constitutional objection that is based on the text of the Constitution, which requires that high-ranking executive officers like U.S. Attorneys be appointed under statute or nominated by the president (and confirmed by the Senate).

Yet after the expiration of the Independent Counsel Act in Jun 1999, the Justice Department asserts the right to take any private citizen like Smith and effectively give him greater authority than a U.S. Attorney. This glaring inconsistency has led to a number of challenges. Thus far, they have been unsuccessful, but none have gone to the Supreme Court. Cannon wanted to hear oral arguments before ruling on the question. That decision has sent the politicians and reporters into another frenzy of faux outrage and indignation.

MSNBC legal analyst and NYU law professor Melissa Murray went on with host Chris Hayes to tell Judge Cannon to “stay in her lane” and mock her consideration of constitutional claim:

“Girl, stay in your lane. Stay. In. Your. Lane. So, yes, not only has the issue of whether the special counsel comports with the structures of constitutional law, that’s been settled. That’s been addressed in multiple courts. Settled. We don’t have to rehash that … If this were an actual issue it would ultimately be decided by the Supreme Court, not by a district court judge in Fort Pierce, Florida.”

It is a baffling lecture. Cannon is precisely in her lane in hearing a claim without controlling authority. The fact is that the Supreme Court has not ruled on the issue and many lawyers have objected to the summary treatment given the claim by other courts. The point of creating a record is to allow a full review that could well end up at the Supreme Court.

Who isn’t staying in their lane? Cannon’s colleagues.

The New York Times recently reported that two judges attempted to get Cannon to hand off the case when it was randomly assigned to her. So, the suggestion is that two of her colleagues breached any sense of collegiality and confidentiality to contribute to a hit piece on Cannon.

It is worth noting that there was no reason for Cannon to decline the selection, particularly not due to her appointment by Trump. A variety of Trump appointees have ruled against Trump on matters without a hint of objection from the left.

While it is true that Cannon was just put on the bench a couple years ago, that did not seem to bother these same pundits in the Georgia case. Fulton County Superior Court Judge Scott McAfee was put on the bench only shortly before being assigned the Georgia case against Trump and associates.

Cannon is a true American success story and, if she were only to rule in favor of the left, she would certainly be the subject of glowing stories of how she went from being born in Cali, Colombia to joining the federal bench. Her mother escaped Cuba after the revolution, and she grew up with a deep-seated faith in the rule of law. She graduated from Duke University and, after a stint as a journalist, graduated from Michigan Law School magna cum laude.

Yet there will be no “American dream” stories for Cannon like the ones that ran for Sonia Sotomayor after her nomination.

Cannon is a Republican and has the temerity to follow a conservative jurisprudence. For the media, that makes her unworthy (much like the lack of coverage on Justice Clarence Thomas’ incredible life story).

There is little chance that the scorched Earth campaign against Cannon will work. When your family escapes Communist Cuba and then the drug-ravaged city of Cali, partisan media hit pieces are hardly intimidating. That may be frustrating for many in the media, but she is fulfilling the purpose of Article III of the Framers. She will rule and she will not yield.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University School of Law. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon and Schuster, 2024).

Category:

Tagged with:

The Land that Law Forgot: The Supreme Court and the New York Legal Wasteland

By: Jonathan Turley | June 24, 2024

Below is my column in The Hill on last week’s cases and the sharp contrast to the handling of the Trump case in Manhattan. Two of these cases hold particular resonance with some of us who criticized Bragg’s prosecution.

Here is the column:

In 1976, Saul Steinburg’s hilarious “View of the World from 9th Avenue” was published on the cover of the New Yorker. The map showed Manhattan occupying most of the known world with wilderness on the other side of the Hudson River between New York and San Francisco. The cartoon captured the distorted view New Yorkers have of the rest of the country.

Roughly 50 years later, the image has flipped for many. With the Trump trial, Manhattan has become a type of legal wilderness where prosecutors use the legal system to hunt down political rivals and thrill their own supporters. New York Attorney General Letitia James (D) ran on a pledge to bag former president Donald Trump. (She also sought to dissolve the National Rifle Association.)

Manhattan District Attorney Alvin Bragg also pledged to get Trump. Neither specified how they would do it, but both were elected, and both were lionized for bringing controversial cases against Trump.

Just beyond the Hudson River, the response to these cases has been far less positive. James secured an obscene civil penalty of almost half a billion dollars without having to show there was a single victim or dollar lost from alleged overvaluation of assets.

Through various contortions, Bragg converted a dead misdemeanor case into 34 felonies in an unprecedented prosecution. New Yorkers and the media insisted that such selective prosecution was in defense of the “rule of law.”

This week in the Supreme Court, a glimpse of the legal landscape outside of Manhattan came more sharply into view. It looked very different as the Supreme Court, with a strong conservative majority, defended the rights of defendants and upheld core principles that are being systematically gutted in New York.

In Gonzalez v. Trevino, the court held in favor of Sylvia Gonzalez, who had been arrested in Castle Hills, Texas in 2019 on a trumped-up charge of tampering with government records. She had briefly misplaced a petition on a table at a public meeting.

This was a blatant case of selective prosecution by officials whom Gonzalez had criticized. She was the only person charged in the last 10 years under the state’s records laws for temporarily misplacing a document. She argued that virtually every one of the prior 215 felony indictments involved the use or creation of fake government IDs.

Although the charges were later dropped, the case reeked of political retaliation and selective prosecution. There is no evidence that anyone else has faced such a charge in similar circumstances. Yet when she sued, the appellate court threw her case out, requiring Gonzales to shoulder an overwhelming burden of proof to establish selective prosecution for her political speech. The justices, on the other hand, reduced that burden, allowing Gonzalez to go back and make the case for selective prosecution.

Unlike the Trump case, the criminal charges against Gonzales were thrown out before trial. For Trump, selective prosecution claims were summarily dismissed, even though no case like Bragg’s appears to have ever been brought before.

The Bragg case is raw political prosecution. No one seriously argues that Bragg would have brought this case against anyone other than Trump. Indeed, his predecessor rejected the case. Yet people were literally dancing in the streets when I came out of the courthouse after the verdict against Trump. In fact, the selectivity of the prosecution was precisely why it was so thrilling for New Yorkers.

Another case decided this week was Erlinger v. United States. The justices ruled 6-3 (and not along the standard ideological lines) to send back a case in which Paul Erlinger had been convicted of unlawful possession of a firearm as a felon. He was given an enhanced sentence for having three prior convictions for violent felonies or serious drug offenses. However, the court denied him the right to have a jury rule on the key issue of whether these prior offenses occurred on different occasions.

The court ruled that a jury had to decide this issue unanimously under a standard of beyond reasonable doubt. This is in contrast to how the Trump case was handled, in which jurors could disagree on key aspects of the crime yet still convict the defendant.

In Trump’s trial, Judge Juan Merchan effectively guaranteed a conviction by telling jurors that they did not have to agree with specificity on what had occurred in the case to convict Trump. The only way to get beyond the passage of the statute of limitations on the dead misdemeanor for falsifying business records had been to allege that the bookkeeping violation in question occurred to conceal another crime. Bragg did not bother to state clearly what that crime was, originally alluding to four different crimes.

It was not until the end of the case that Merchan would lay out three possible crimes for the jury. All the way up to the final instructions in the case, legal analysts on CNN and other outlets expressed doubt about what the actual theory of the criminal conduct was in the case.

Despite spending little time on these secondary crimes at trial, Merchan told the jury that they could convict if they believed that invoices and other documents had been falsified to hide federal election violations, other falsification violations or a tax violation.

Those are very different theories of a criminal conspiracy. Under one theory, Trump was hiding an affair with a porn actress with the payment of hush money before the election. Under another theory, he was trying to reduce a tax burden for someone else (that part was left hazy). As a third alternative, he might have falsified the documents to hide the falsification of other documents, a perfectly spellbinding circular theory.

If those sound like they could be three different cases, then you are right. Yet Merchan told the jurors that they did not have to agree on which fact-pattern or conspiracy had occurred. They could split 4-4-4 on the secondary crime motivating the misdemeanors and just declare that some secondary crime was involved.

That was all that is required in New York when in pursuit of Trump.

Neither of these two cases is controlling in the Trump case, although there are two others pending on the use of obstruction (Fischer v. United States) and presidential immunity (Trump v. United States) that could affect some of the cases against Trump. But Gonzales and Erlinger demonstrate the high level of protections that we normally afford criminal defendants. A court with a 6-3 conservative majority just ruled for the rights of all defendants in defense of the rule of law.

That is not how the law is seen from 9th Avenue.

It all comes down to the legal map. As even CNN senior legal analyst Elie Honig observed, this case of contorting the law for a selective prosecution would not have succeeded outside of an anti-Trump district.

On the New Yorker map circa 2024, once you cross the Hudson River eastward, you enter a legal wilderness.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University School of Law. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon and Schuster, 2024).

Category: