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Posts tagged ‘LAWYERING’

A Judge of Her Peers? Judge Dugan Assigned a Judge Previously Rebuked for Political Comments


By: Jonathan Turley | May 21, 2025

Read more at https://jonathanturley.org/2025/05/21/a-judge-of-her-peers-judge-dugan-assigned-a-judge-previously-rebuked-for-political-bias/

Five years ago, I wrote about a federal judge who, in my view, had discarded any resemblance of judicial restraint and judgment in a public screed against Republicans, Donald Trump, and the Supreme Court. The Wisconsin judge represented the final death of irony: a jurist who failed to see the conflict in lashing out at what he called judicial bias in a political diatribe that would have made MSNBC’s Lawrence O’Donnell blush.

His name is Lynn Adelman.

I was wrong in 2020. Irony is very much alive.

This week, a judge was randomly selected to preside at the trial of Milwaukee County Circuit Judge Hannah Dugan. A critic of Trump’s immigration policies, Dugan is accused of obstructing federal law enforcement and facilitating the escape of an unlawful immigrant.

The judge assigned to the Dugan case? You guessed it. Lynn Adelman, 85.

A judge is expected to come to a case like this one without the burden of his own baggage. Judge Adelman is carrying more baggage than Amtrak in Wisconsin.

The selection of Adelman shows how political commentary by judges undermines the legitimacy of the court system. Now, in a case that has divided the nation, the public will have to rely on a judge who discarded his own obligations as a judge to lash out at conservatives, Trump, and conservative jurists.

Adelman was a long-standing Democratic politician who tried repeatedly and unsuccessfully to run for Congress during his 20-year tenure in the Wisconsin Senate. For critics, Adelman never set aside his political agenda after President Bill Clinton nominated him for the federal bench. Adelman was sharply rebuked for ignoring controlling Supreme Court precedent to rule in favor of a Democratic challenge over voting identification rules just before a critical election.  Adelman blocked the law before the election despite a Supreme Court case issued years earlier in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), rejecting a similar challenge.

The United States Court of Appeals for the Seventh Circuit issued a stinging reversal, explaining to Adelman that in “our hierarchical judicial system, a district court cannot declare a statute unconstitutional just because he thinks (with or without the support of a political scientist) that the dissent was right and the majority wrong.”

Adelman, however, was apparently undeterred. In 2020, he wrote a law review article for Harvard Law & Policy Review, titled “The Roberts Court’s Assault on Democracy.”

Adelman attacked what he described as a “hard-right majority” that is “actively participating in undermining American democracy.” He also struck out at Trump as “an autocrat… disinclined to buck the wealthy individuals and corporations who control his party.”

Adelman was later admonished by the Civility Committee for the Seventh Circuit Court of Appeals for his public political attacks as “inconsistent with a judge’s duty to promote public confidence in the integrity and impartiality of the judiciary and as reflecting adversely on the judge’s impartiality.”

The costs of such extrajudicial commentary became vividly clear this week. Judge Dugan is being called a “hero” by Democratic politicians and pundits for helping an individual evade federal arrest. At least one judge has pledged to do the same in her courtroom. On the other side, many are appalled by Dugan’s conduct as fundamentally at odds with the role of a jurist in either the state or federal system.

There are weighty issues in the case and the public has a right to expect a fair trial with a judge who will not be swayed by his own political viewpoints. Dugan already had the advantage of a trial before a jury taken from one of the most liberal districts in the country. She will now have a judge who was himself sanctioned for political statements and reversed for ignoring controlling precedent.

This problem is growing within our courts, including at the Supreme Court. I recently wrote about public commentary by Justices Sonia Sotomayor and Elena Kagan that created distractions this month in cases before the Supreme Court.  The public has a right to expect more from jurists. The price of the ticket to the bench is to set aside one’s political agenda and political commentary. When you don that robe, you must discard your politics. Some, however, seem to cling to both the bias and the bench.

The message for the public could not be worse this week. In a case involving a Democratic judge accused of discarding basic judicial principles, a random selection produced a Democratic judge reversed for discarding basic judicial principles.

For conservatives, these cases reaffirm a view of a dual-track legal system. Lawfare has been raging in blue cities like New York where President Trump faced judges denounced for their political associations or past commentary. In Washington, Trump was assigned a federal judge who previously appeared to lament that Trump was not a criminal defendant in her courtroom. She was then randomly assigned Trump’s case after he was charged by Special Counsel Jack Smith.

We have the greatest legal system in the world, but it cannot survive long without the faith and support of the public. That is why judicial ethics rules bar not just conflicts of interest but the appearance of a conflict of interest. The perception of political bias robs our courts of their inherent legitimacy and authority for citizens.

Just as Adelman lashed out at most of the Supreme Court as lacking credibility, he can hardly expect conservatives and Republicans to find him a credible choice in the Dugan case. That is why I was wrong five years ago. Irony is not entirely dead. It is just uniformly ignored.

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.”

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Law, Political

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“Your Credibility with Me is about None”: CNN Trial Goes From Bad to Worse


By: Jonathan Turley | January 16, 2025

Read more at https://jonathanturley.org/2025/01/16/your-credibility-with-me-is-about-none-cnn-trial-goes-from-bad-to-worse/

In following the defamation trial against CNN by veteran Zachary Young, we have previously (here, here, and here) marveled at how bad things were going for the network.  It appears that they are getting even worse. This has been a brutal week as CNN figures, including host Jake Tapper, took the stand. If “this is CNN,” the judge (and possibly the jury) are not liking what they are seeing. The report at the heart of the case aired on CNN’s “The Lead with Jake Tapper” on Nov. 11, 2021, and was shared on social media and (a different version on) CNN’s website. In the segment, Tapper told his audience ominously how CNN correspondent Alex Marquardt discovered that “Afghans trying to get out of the country face a black market full of promises, demands of exorbitant fees, and no guarantee of safety or success.” Marquardt piled on in the segment, claiming that “desperate Afghans are being exploited” and need to pay “exorbitant, often impossible amounts” to flee the country. He then named Young and his company as an example of that startling claim. The evidence included messages from Marquardt that he wanted to “nail this Zachary Young mf**ker” and thought the story would be Young’s “funeral.” After promising to “nail” Young, CNN editor Matthew Philips responded: “gonna hold you to that cowboy!” Likewise, CNN senior editor Fuzz Hogan described Young as “a shit.” As is often done by media, CNN allegedly gave Young only two hours to respond before the story ran. It is a typical ploy of the press to claim that they waited for a response while giving the target the smallest possible window. In this case, Young was able to respond in the short time and Marquardt messaged a colleague, “f**king Young just texted.” In the last week, Tapper was seen on video by the jury and was mocked for claiming under oath that he “doesn’t pay attention to ratings,” a claim that could make him unique as a network host. While Tapper can argue that he was referencing the following of daily numbers, critics hammered him by showing repeated clips where he discussed ratings. However, the most damaging testimony may have come from top producers who told the jurors that they opposed the modest apology given to Young on air. Since Young seemed to do well before the jury, the testimony of senior editor Fuzz Hogan, CNN correspondent Alex Marquardt, CNN producer Michael Conte, CNN’s executive vice president of editorial Virginia Moseley, and CNN supervising producer Michael Callahan undermined any effort to portray the network as seeking to amend a wrong or reduce damage to Young.

Arguably, the worst moment came with an argument by CNN’s lead attorney, David Axelrod. Axelrod introduced a document that he claimed was a smoking gun and showed that Young was a liar. Pointing dramatically at Young and waiving the document in the air, Axelrod declared that he had the proof:

“Plaintiff’s entire case, sitting right there, is that after the publications, he couldn’t get any work…Mr. Young knew, when he filed this lawsuit that he had entered into a new consulting agreement with a government contractor one month after CNN’s publication. This entire lawsuit was a fraud on this court. It was a fraud on CNN. This man knew it. I don’t know what they know. But when this came up in discovery, CNN’s counsel asked Mr. Young about the Helios connection, and he completely lied in his deposition. Over and over again, he made up some incredible ruse that Helios just had his security clearance because it was a company that held security clearances. It makes no sense. He knew at that time that he had a consulting agreement with Helios Global and he didn’t disclose it. It was an outright lie.”

However, it turned out that the document merely was Young’s application to maintain his security clearance.

Young’s attorney, Vel Freedman, later laid waste to CNN. He told the court that Young had lost his security clearance back in 2022 and that he hadn’t been aware of that until he double-checked after his testimony in the case. Freedman asked for the right to present a witness who would testify on the issue and Axelrod objected. Judge Henry had had enough and blew up at CNN. He read back Axelrod’s comments and said “You called him a liar multiple times there.” He told Axelrod that he owed an apology to the plaintiff. After telling CNN that “this isn’t Kindergarten,” he added “Right now, your credibility with me, Mr. Axelrod, is about none.”

That is never a good thing to hear from a judge.

Axelrod apologized but the damage is clearly considerable.

The most chilling aspect from a litigation perspective? Axelrod replaced the earlier lead counsel who also imploded in court over ill-considered arguments.

None of this bodes well for the network. Alienating the judge is obviously never good, but it also could have a material impact if there is an award that CNN wants reduced by a order of remittitur. In addition, having top producers expressing a lack of regret and even opposition to the on-air apology could push such damages higher for a jury. Both sides are arguing that “this is CNN,” but these moments are building a more negative view of what that is.

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.”

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Law, Media, Political

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How Jack Smith Destroyed His Own Case Against Trump


By: Jonathan Turley | January 13, 2025

Read more at https://jonathanturley.org/2025/01/13/how-jack-smith-destroyed-his-own-case-against-trump/

Below is my column in The Hill on the one thing that the forthcoming report of Special Counsel Jack Smith will not address: how he destroyed his own case against Donald Trump. Smith will be something of a tragic figure for future special counsels. The only thing missing is a shirt reading, “I spent over two years and $50 million dollars and all I got was this lousy t-shirt (and a redacted report).”

Here is the column:

The expected release of Special Counsel Jack Smith’s report will occur as early as this weekend, albeit without those sections dealing with the Florida documents case. (Other defendants are still facing prosecution in that case.) However, the most glaring omission will be arguably an explanation of how Smith lost this war without firing a single shot in a trial.

After more than two years, two separate cases and countless appeals (not to mention more than $50 million spent), Smith left without presenting a single witness, let alone charge, at trial. It is an example of how a general can have the largest army and unlimited resources and yet defeat himself with a series of miscalculations.

History probably won’t be kind to Smith, whose record bespeaks a “parade general” — a prosecutor who offered more pretense than progress in the prosecution of an American president.

Indeed, this report will be one of Smith’s last chances to display a case that notably never got close to an actual trial. One-sided and unfiltered, it will have all of the thrill of a Sousa march of a regiment in full dress. We know because we have seen much of this before. At every juncture, Smith has taken his case out on parade in the court of public opinion.

The Smith report will reportedly concern only the Washington case alleging crimes related to Jan. 6 and the 2020 election — a case that was always a bridge too far for Smith.

When first appointed, Smith had a straightforward and relatively easy case to make against Trump over his removal and retention of presidential materials. The case was not without controversy. Some of us questioned the selective nature of the prosecution given past violations by other presidents, particularly as shown by the violations of President Biden going back decades found by another special counsel.

However, the case originally focused on the conspiracy and false statements during the federal investigation into the documents at Mar-a-Lago. Those are well-established crimes that Smith could have brought to trial quickly with a solid shot for conviction.

But Smith’s undoing has always been his appetite. That was evident when he was unanimously reversed by the Supreme Court in his case against former Virginia Gov. Bob McDonnell (R).

In Florida, Smith was in signature form. He took a simple case and loaded it up with press-grabbing charges regarding the retention of classified material. In so doing, he slowed the case to a crawl. As a defense lawyer who has handled classified documents cases, I said at the outset that I did not believe he could get this case to a jury before the 2024 election, and that after that election, Smith might not have a case to present. Smith had outmaneuvered himself.

Then came the Washington filing, the subject of this forthcoming report. It was another vintage Smith moment. Smith played to the public in a case that pushed both the Constitution and statutory provisions beyond the breaking point. He simply could not resist, and he was only encouraged after the assignment of Judge Tanya Chutkan, 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.

The D.C. case was doomed from the outset by both a prosecutor and judge who, in their zeal to bag Trump, yielded to every temptation. As time ticked away, Smith became almost apoplectic in demanding an expedited path to trial, including cutting short appeals. After refusing to recuse herself, Chutkan seemed to indulge Smith at every turn. But the Supreme Court failed to agree that speed should trump substance in such reviews.

With both cases slipping out of his grasp, Smith then threw a final Hail Mary. He asked Chutkan to let him file what was basically a 165-page summary of this report against Trump before the election. There was no apparent reason for the public release of the filing, except to influence the election — a motivation long barred by Justice Department rules. Chutkan, of course, allowed it anyway, despite admitting that the request was “procedurally irregular.” It did not work. Although the press and pundits eagerly repeated the allegations in the filing, the public had long ago reached its own conclusion and rendered its own verdict in November.

In my view, Smith’s D.C. case would never have been upheld, even if he had made it to a favorable jury in front of a motivated judge. As established by the court in Trump v. United States, Smith could not rely on much of his complaint due to violating constitutionally protected areas.

Smith responded to the immunity decision again in typical Smith fashion, largely keeping the same claims with minimal changes. His new indictment was to indictments what shrinkflation is to consumer products — the same package with less content. As in the McDonnell case, Smith was going for conviction at all costs, despite a high likelihood of the case eventually being overturned.

Then the public effectively put an end to both cases by electing Trump.

The Smith investigation should be a case study for future prosecutors in what not to do. An abundance of appetite and arrogance can prove as deadly as a paucity of evidence and authority.

Ironically, Smith will not be the only special counsel offering such a cautionary tale. The report of Special Counsel David Weiss into the Hunter Biden controversy will also be released soon. Weiss was widely denounced for allowing major crimes to lapse against Hunter Biden and offering an embarrassing sweetheart plea deal that collapsed in open court. Notably, Weiss succeeded by minimizing his charges (for the wrong reason). In that way, Weiss has one claim that Smith does not: He made it to court and secured a conviction. Indeed, he was about to prosecute a second case when President Biden pardoned his son.

Weiss’s report will likely only increase questions over his failure to pursue Hunter more aggressively. For Smith, the question is whether he was too aggressive, to the detriment of his own prosecution.

Prosecutions are not the sole measure of success for a special prosecutor. At times, the report itself can be of equal, if not greater, importance to the public.

This is not one of those cases.

The public will be given Smith’s detailed account of a case that was never brought and would likely never have held up. At more than $50 million, it is arguably the biggest flop since “The Adventures of Pluto Nash.“ The difference is that it did not take more than two years to watch Eddie Murphy’s film disaster, and the actor did not then write up a report on how good the movie really was.

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.”

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


By: Jonathan Turley | January 10, 2025

Read more at https://jonathanturley.org/2025/01/10/with-the-trump-sentencing-the-verdict-is-in-for-the-new-york-legal-system/

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).

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Crime, Law, Political

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The Wild World of Democratic Ethics: Defeated Representative Accused of Gaetz Leak


By Jonathan Turley | December 10, 2024

Below is my column in the New York Post on the news reports that outgoing Rep. Susan Wild (D. Pa.) was the person who violated the rules (and oath) of the House Ethics Committee and leaked information to the media this month. The information concerned the investigation into former Rep. Matt Gaetz (R., Fla.). Wild embodies the collapsing ethical foundation of the Democratic Party as members struggle to justify the Biden pardon.

Here is the slightly expanded column:

“You must be wary of those seeking to use their influence and their expertise to wrongful ends.” Those words were spoken at the George Washington Law School commencement ceremony two years ago by the recently defeated Rep. Susan Wild (D., Pa.).

This week, the words took on a new meaning after Wild was accused of leaking information from the House Ethics Committee. Wild embodies a party that is in an ethical and political free fall this month.  If news reports are accurate, Wild appears to have given our students a curious ethical lesson in how not to be a lawyer or legislator.

Wild was fighting to release the report of the investigation into former Rep. Matt Gaetz (R., Fla.). When Gaetz decided to withdraw from Congress, the report was not released. That is when details from the committee were leaked to the media, and the press reported that “two sources said Wild ultimately acknowledged to the panel that she had leaked information.”

Keep in mind that this is the House Ethics Committee, and she is a member. She is also a member of Congress who took an oath as part of the panel’s rules that “I do solemnly swear (or affirm) that I will not disclose, to any person or entity outside the Committee on Ethics, any information received in the course of my service with the Committee, except as authorized by the Committee or in accordance with its rules.”

Wild herself has not publicly confirmed or denied the alleged leaking of the information. If the reports are true, Wild knowingly violated an oath that she took not to release information from the Ethics Committee because she was unhappy with losing votes on the release of information.

Her office seems to have shrugged off media inquiries. As in the past controversy, Wild has avoided public comment on the report that she was the leaker.

This controversy speaks to more than one unethical former representative. This month, we have seen Democrats line up to support one of the most unethical and abusive uses of presidential pardon power in history. President Biden not only pardoned his son but pardoned him for any crimes over a decade, including some that many felt implicated President Biden himself.

The President issued the pardon after repeatedly lying to the public when he was a candidate that he would never do so. In the previous election, Biden lied to the public about not having met Hunter Biden’s clients or having knowledge of his dealings in the influence-peddling scandal.

Biden’s lack of ethics surprised no one. However, even today, the support that he received from Democratic leaders over the pardon has been shocking. Sen. Dick Durbin (D., Ill.), chairman of the Senate Judiciary Committee and Senate majority whip, even called it a “labor of love.” Indeed, much of the corruption in Washington is a labor of love, from nepotism to influence peddling to corrupt pardons. Indeed, faced with overwhelming opposition of the public to the Biden pardon, Democratic members look like the comical choreography of “Prisoners of Love” from the movie The Producers. (“Oh, you can lock us up and lose the key; But hearts in love are always free!”).

The distorted view of ethics in the Democratic Party was vividly on display during an embarrassing moment recently at the White House when Press Secretary Karine Jean-Pierre claimed that a poll showed “64% of the American people agree with the pardon — 64% of the American people. So, we get a sense of where the American people are on this.” That poll actually showed the majority of Americans opposed the pardon. Yet, it was 64 percent of Democrats who favored a president giving his own son a pardon. It is all about the ends rather than the means in today’s politics of rage.

The 2022 words of Wild were particularly poignant because they were used as part of a false attack made by Wild at my own school. In a speech to the law students on living an ethical life as a lawyer, Wild accused me of testifying falsely in the Trump impeachment that only criminal acts are impeachable after saying the opposite in my testimony in the Clinton impeachment. The only problem is that Wild’s statement was demonstrably and undeniably false. I testified in both the Clinton and Trump impeachments that an impeachable offense need not be an actual crime.  Ironically, Wild’s own Democratic colleagues and later the House managers in the Senate Trump trial repeatedly cited my testimony on that very point.

None of this matters in the Wild world of Democratic ethics. It is very simple. Whatever Democrats are attempting cannot be “wrongful ends.” More importantly, it is the ends, not the means, that are the measure of ethics. Since they are only fighting for what is right, the ends justify the means from cleansing ballots of Republicans (including Trump) to supporting a massive censorship system to ignoring court decisions to count invalid votes. It is the same sense of ethics that led someone at the Supreme Court to leak a draft of the Dobbs decision. Even though the leak shattered court ethical rules and traditions, the leaker was lionized by many on the left.

For years, the “by any means necessary” wing has dominated the Democratic Party. Ironically, the collapsing of the party’s credibility with the public has left little to show beyond a litany of unethical means used to achieve unrealized ends.

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.”

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corruption, Crime, Law, Political

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Take Two Puberty Blockers and Call Me in the Morning? Justice Sotomayor Under Fire for Aspirin Analogy in Oral Argument


By: Jonathan Turley | December 5, 2024

Read more at https://jonathanturley.org/2024/12/05/take-two-puberty-blockers-and-call-me-in-the-morning-justice-sotomayor-under-fire-for-aspirin-analogy-in-oral-argument/

Supreme Court Justice Sonia Sotomayor is under fire today for seemingly dismissing medical concerns over the risks of puberty blockers and gender surgeries for minors with a comparison to taking Aspirin. In the oral arguments in United States v. Skrmetti, Sotomayor pointed out that there are risks to any medical procedure or drug. However, the analogy belittled the concerns of many parents and groups over the research on the dangers of these treatments. It also highlighted how the Biden Administration and liberal justices were discarding countervailing research inconveniently at odds with their preferred legal conclusion.

The Biden administration is challenging Tennessee’s law banning gender-changing drugs and procedures for minors. That state cites studies that indicate serious complications or risks associated with the treatments for children.

While the conservative justices acknowledged studies on both sides of the debate over risks, the liberal justices seemed to dismiss studies that were inconsistent with striking down the law as a violation of the Equal Protection Clause of the 14th Amendment. That issue produced a difficult moment for Solicitor General Elizabeth Prelogar when Supreme Court Justice Samuel Alito confronted her about statements made in her filing with the Court.

Alito quoted Prelogar’s petition to the Court that claimed that there was “overwhelming evidence” supporting the use of puberty blockers and hormone treatments as safe with positive results for children. Justice Alito, however, cited extensive countervailing research from European countries showing significant risks and potential harm. The World Health Organization has recognized these risks and lack of evidence supporting these procedures and researchers in Finland recently published a study showing that suicides among kids with gender dysphoria are extremely rare in contradiction to one of the common arguments made for adolescent treatment.

Alito also cited the United Kingdom’s Cass Review, released shortly after her filing. The Cass study found scant evidence that the benefits of transgender treatment are greater than the risks. He then delivered the haymaker: “I wonder if you would like to stand by the statement in your position or if you think it would now be appropriate to modify that and withdraw your statement.”

American Civil Liberties Union attorney Chase Strangio (who has previously argued that children as young as two years old can identify themselves as transgender) seemed to later acknowledge that very few gender-dysphoric children actually go through with suicide but insisted that the procedures reduce suicidal inclinations.

Justice Sotomayor seemed intent on defusing the problem with the opposing scientific research in her exchange with Tennessee Solicitor General Matthew Rice. In his argument, Rice stated that “they cannot eliminate the risk of detransitioners, so it becomes a pure exercise of weighing benefits versus risk. And the question of how many minors have to have their bodies irreparably harmed for unproven benefits is one that is best left to the legislature.”

That is when Sotomayor interjected: “I’m sorry, counselor. Every medical treatment has a risk — even taking Aspirin. There is always going to be a percentage of the population under any medical treatment that is going to suffer a harm.”


According to studies, aspirin can have potential side effects that are largely quite mild. The studies cited by the state are raising far more serious risks and medical changes, including irreversible double mastectomies, genital surgeries, sterilization and infertility. There can also be long-term effects in bone growth, bone density, and other developmental areas. Those risks have led European countries to change their policies on the treatments pending further study.

The point is not that the justices should resolve this medical debate, but that it is properly resolved elsewhere, including in the state legislative process.

Sotomayor’s aspirin analogy seemed gratuitously dismissive for many and reminiscent of the response to scientists who questioned Covid protocols and policies from the six-foot rule to mask efficacy.

Stanford Professor Dr. Jay Bhattacharya (who is now nominated to lead the National Institutes of Health) and others were vilified by the media over their dissenting views on the pandemic and efforts to show countervailing research. He and others signed the 2020 Great Barrington Declaration that called on government officials and public health authorities to rethink the mandatory lockdowns and other extreme measures in light of past pandemics.

All the signatories became targets of an orthodoxy enforced by an alliance of political, corporate, media, and academic groups. Most were blocked on social media despite being accomplished scientists with expertise in this area.

Some scientists argued that there was no need to shut down schools, which has led to a crisis in mental illness among the young and the loss of critical years of education. Others argued that the virus’s origin was likely the Chinese research lab in Wuhan. That position was denounced by the Washington Post as a “debunked” coronavirus “conspiracy theory.” The New York Times Science and Health reporter Apoorva Mandavilli called any mention of the lab theory “racist.”

Federal agencies now support the lab theory as the most likely based on the scientific evidence.

Likewise, many questioned the efficacy of those blue surgical masks and supported natural immunity to the virus — both positions were later recognized by the government.

Others questioned the six-foot rule used to shut down many businesses as unsupported by science. In congressional testimony, Dr. Anthony Fauci recently admitted that the 6-foot rule “sort of just appeared” and “wasn’t based on data.” Yet not only did the rule result in heavily enforced rules (and meltdowns) in public areas, the media further ostracized dissenting critics.

Again, Fauci and other scientists did little to stand up for these scientists or call for free speech to be protected. As I discuss in my new book, “The Indispensable Right,” the result is that we never really had a national debate on many of these issues and the result of massive social and economic costs.

For scientists attacked and deplatformed for years, Sotomayor’s statements were painfully familiar. They also cited European and countervailing studies that the media dismissed as fringe views or conspiratorial viewpoints. In the same way, Justice Sotomayor’s analogy seemed to treat those raising these concerns (including parents) as akin to questioning the risks of aspirin. The import seemed to be that stopping taking aspirin based on minor concerns would be ridiculous and so too are objections to gender changing treatments and procedures.

The fact is some analogies are poorly chosen or misunderstood. However, the thrust of the comments from the justice were dismissive of the science supporting Tennessee and the 23 states with similar laws. That is roughly half of the states which want to adopt a more cautious approach. No one was arguing against adults being able to opt for such treatment, but these states do not want children to be subject to the treatments in light of this ongoing debate.

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.”

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It’s Not My Fault, It’s The Default: Fani Willis Loses Significant Records Fight


By: Jonathan Turley | December 4, 2024

Read more at https://jonathanturley.org/2024/12/04/its-not-my-fault-its-the-default-fani-willis-loses-significant-records-fight/

Fulton County District Attorney Fani Willis and her case against President-elect Donald Trump continue to trip wires in the courts with delays and losses. The latest is a fight with the organization Judicial Watch, which won a major records fight to gain access to any communications with Special Counsel Jack Smith and the House January 6th Committee. While it is not clear what records exist, it is the type of demand that most offices fight vigorously to protect their confidentiality and privileges of deliberation. Willis, however, lost by default after failing to make a substantive argument against the claim.

The Judicial Watch lawsuit was based on the Open Records Act (ORA), and Willis had defenses to make, but she failed to make them. Fulton County Superior Court Judge Robert McBurney ordered Fulton County District Attorney Fani Willis to hand over records within five business days. McBurney found that Willis violated Georgia’s Open Records Act by failing to respond to Judicial Watch’s lawsuit.

He wrote that Willis did not make any “meritorious defense” and that “Plaintiff is thus entitled to judgment by default as if every item and paragraph of the complaint were supported by proper and sufficient evidence.”

The case against Trump is on appeal after the court decided not to disqualify Willis from prosecuting the case.

Willis will also now have to pay Judicial Watch’s attorney’s fees. The hearing on the fees will appropriately come just before Christmas for Judicial Watch on Dec. 20, 2024. That will add to the towering costs for the people of Atlanta in funding this high-profile adventure.

Of course, she can insist “it is not my fault, it’s the default.”

Here is the order: Judicial Watch v. Willis

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.”

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Marc Elias and the Demise of the Faux “Save Democracy” Movement


By: Jonathan Turley | November 13, 2024

Read more at https://jonathanturley.org/2024/11/13/marc-elias-is-back-and-that-is-not-good-news/

(MSNBC/via YouTube)

Below is my column in the New York Post on the reappearance of Marc Elias in leading the effort to undo the victory of Dave McCormick in Pennsylvania. While some have distanced themselves from the controversial Democratic lawyer, Sen. Bob Casey has embraced Elias in his effort to retain the seat. Despite being sanctioned and ridiculed by courts in prior cases, Democrats continue to enrich Elias, who is the personification of the hypocrisy of some self-appointed “save democracy” champions. Casey continued on Tuesday to refuse to concede. Every candidate has a right to have all of the votes counted. However, regardless of the outcome of the effort, Casey’s association with Elias destroys any moral high ground for him and his campaign.

Here is the column:

Marc Elias is back and that is not good news. Despite the Pennsylvania race being called by the AP almost a week ago, Elias is working with Sen. Bob Casey (D-Pa.) to try to change that outcome. It is not surprising that Casey was left with Elias.

For many, Elias is a notorious figure who captures the hypocrisy of the “save democracy” crowd. Elias is an attorney who has been sanctioned in court and denounced by critics as a Democratic “dirty trickster” and even an “election denier.” Despite his checkered history, Elias remains the go-to lawyer for many Democratic campaigns.

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, 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.

The Clinton campaign and the Democratic National Committee were ultimately sanctioned by the FEC over the handling of the funding of the dossier through his prior firm. (I previously discussed the comparison to the criminal charges against Trump for treating the mislabeling of payments as “legal expenses.”).

The Democratic National Committee reportedly later cut ties with Elias.

Nevertheless, other Democrats continued to hire Elias despite his checkered past. He unsuccessfully led efforts to challenge Democratic losses.  Elias also was the subject of intense criticism after a tweet that some have called inherently racist.

Elias continued to be accused of not defending but thwarting democracy. In Maryland, Elias filed in support of an abusive gerrymandering of the election districts that a court found not only violated Maryland law but the state constitution’s equal protection, free speech and free elections clauses. The court found that the map pushed by Elias “subverts the will of those governed.”

His work for New York redistricting was ridiculed as not only ignoring the express will of the voters to end such gerrymandering but effectively negating the votes of Republican voters. In 2024, the Chief Judge of the Western District of Wisconsin not only rejected but ridiculed the Elias Law Group for one of its challenges. Judge James Peterson (an Obama appointee) said that the argument “simply does not make any sense.”

The point is that it does not have to make sense. Democratic campaigns fund Elias and his various profitable enterprises to seek to change the outcome of called elections.

That is the case with Casey. Trump won Pennsylvania’s presidential election, and Dave McCormick received tens of thousands more votes. With 99 percent of the votes counted, even Senate Majority Leader Chuck Schumer relented in reversing his decision to bar McCormick from the orientation for new senators.

What is most striking is the strategy of Elias. The state has roughly 87,000 provisional ballots to count, but those ballots were generally challenged for defects or suspected invalidity. Even if they were to count, it is unlikely that they will break so overwhelmingly for Casey to overturn the result. Indeed, only about 30,000 were coming from Casey strongholds in Philadelphia and Allegheny County. However, Elias just wants to get within .5% to trigger a mandatory recount.

It is reminiscent of Trump demanding an additional recount in Georgia, maintaining on a call that all he needed was to “find 11,780 votes” to change the outcome.  All Elias needs to do is find 40,000 votes.

Of course, when Trump made that comment, Elias and Democrats insisted that he was seeking to defraud the state by demanding a new recount.

It is not the first time Elias seemed to morph into those he denounced. Previously in New York, Elias unsuccessfully sought to flip the result in a congressional race by claiming that the Dominion voting machines somehow switched or changed votes. Sound familiar?

Casey will eventually have to accept defeat, but Elias will remain the break-the-glass option for Democratic campaigns when other lawyers have lost the appetite for challenging election results.

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.” 

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Liz Cheney Under Fire for Allegedly Improper Contacts with Cassidy Hutchinson


By: Jonathan Turley | October 16, 2024

Read more at https://jonathanturley.org/2024/10/16/liz-cheney-under-fire-for-allegedly-improper-contacts-with-cassidy-hutchinson/

Former J6 Committee Co-Chair and Rep. Liz Cheney has long been criticized for her role in creating a one-sided and at times erroneous record of what occurred on January 6th. That includes editing out Trump’s call for supporters to protest “peacefully,” burying evidence on Trump’s offer to supply National Guard support for that day and highlighting a false account of Trump in his presidential limo that was directly contradicted by witnesses.

She now stands accused of unethically contacting a key represented witness to get her to change her testimony. In my view, ethical proceedings are unlikely after the disclosure of ex parte communications with former Trump aide Cassidy Hutchinson. However, the evidence seemingly contradicts public accounts of how Hutchinson decided to fire her counsel and change her testimony.

Hutchinson was represented by Stefan Passantino, who some clearly viewed as a stumbling block to getting Hutchinson to turn against Trump. Hutchinson would claim under oath that Passantino pressured her to stay “loyal” to Donald Trump and coached her responses to support Trump despite her conflicting accounts.

However, newly disclosed evidence allegedly contradicts that account, including Hutchinson telling former Trump aide (and now The View co-host) Alyssa Farah Griffin that “[Passantino’s] not against me complying.” Griffin reportedly responded “I actually agree with Stefan’s approach and think it’s accomplished everyone’s goals. I am happy to tip liz off.”

Hutchinson would later dump Passantino and testify to allegations that have been challenged as untrue. That includes the limo allegation that was repeatedly raised by Cheney and others. Hutchinson recounted the story that Trump allegedly grabbed the wheel of the vehicle after the Secret Service allegedly refused to take him to the Capitol. Cheney and the Committee were aware that the account was directly and clearly refuted by the driver of the vehicle. However, they buried his account and highlighted that claim in its final report as being credible.

The new allegation concerns the communications leading up to that changed testimony. Rep. Barry Loudermilk, R-Ga., chairman of the House Administration oversight subcommittee has released the new evidence while alleging that Cheney used an encrypted phone app to evade defense counsel in speaking with Hutchinson. Under Rule 4.2 of the Rules of Professional Conduct, “a lawyer shall not communicate or cause another to communicate about the subject of the representation with a person known to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the lawyer representing such other person or is authorized by law or a court order to do so.”

Cheney is a D.C. licensed lawyer.

At the outset, in my view, Cheney was acting as a member of Congress in this matter. That has always been a rather grey area for lawyers who are also members of Congress. The bar has taken a broad view of the need for lawyers to adhere to these ethical standards. However, it is not clear politically or ethically if the Bar officials would be inclined to pursue Cheney, who has been lionized in Washington for her role in the investigation. Yet, the record does indicate that Cheney was not just aware of the represented status but the policy of the House to respect the rules governing represented parties. In one message Griffin tells Hutchinson, “Her one concern was so long ad [sic] you have counsel, she can’t really ethically talk to you without him.”

That did not appear to prove a barrier. Before Passantino withdrew as counsel, Cheney communicated secretly with Hutchinson. A later message was sent to Cheney reading on June 6, “Hi, this is Cassidy Hutchinson. I’m sorry for reaching out this way, but I was hoping to have a private conversation with you (soon), if you are willing.”

Cheney responded, “I would be happy to. Let me know what time works for you.”

A few days later, Hutchinson fired Passantino, who told Just the News that “I absolutely had no knowledge at the time that Congresswoman Liz Cheney was communicating with my client behind my back – either directly, through her staff, or through cutouts.”

However, Cheney has claimed that it was Hutchinson who reached out to her and indicated that she was severing her counsel. As an investigating member of Congress, she had an institutional interest, if not a duty, to pursue witnesses.

In her memoir, Cheney said that it was Hutchinson who contacted her directly after her third interview and added “I was very sympathetic to her situation, but I did not want our committee to be advising her on what she should do next…I told Cassidy that she could consult another lawyer, and seek his or her independent advice on how best to move forward.”

We have previously discussed Passantino’s defamation lawsuit against MSNBC legal analyst and former Mueller aide Andrew Weissmann.

Once again, I am doubtful that this would rise to a formal Bar ethics investigation. However, the evidence shows the communications leading to Hutchinson’s firing of her counsel and changing of her testimony, including accounts later challenged by critics.

Hutchinson, Griffin, and Cheney have been reportedly campaigning together this month in support of Vice President Kamala Harris.

In the end, there are ethical concerns raised by these communications. Cheney should have worked through new counsel and proposing alternative counsel raises additional concerns given the interest of Cheney in having the witness “flip” against Trump. She could have waited for new counsel to communicate with her and the Committee.

Alternatively, Hutchinson could have fired her counsel and formally contacted the Committee as an unrepresented party. The ethical rules are designed to avoid this type of murky representational posture. Nevertheless, I am doubtful that this will result in any ethical proceedings against Cheney.

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The Supreme Crisis of Chief Justice John Roberts


By: Jonathan Turley | September 24, 2024

Read more at https://jonathanturley.org/2024/09/23/the-supreme-crisis-of-chief-justice-john-roberts/

Below is my column in The Hill on a growing crisis at the Supreme Court for Chief Justice John Roberts. A new breach of confidentiality shows cultural crisis at the Court. While the earlier leaking of the Dobbs decision could have come from a clerk, much of the recent information could only have originated with a justice.

Here is the column:

Chief Justice John Roberts has always been “a man more sinned against than sinning.” That line from Shakespeare’s “King Lear” seems increasingly apt for the head of our highest court. Roberts was installed almost exactly 20 years ago and soon found himself grappling with a series of controversies that have rocked the court as an institution. He is now faced with another monumental scandal, after the New York Times published leaked confidential information that could only have come from one of the nine members of the court.

By most accounts, Roberts is popular with his colleagues and someone with an unquestioning institutional knowledge and loyalty. He is, in many respects, the ideal chief justice: engaging, empathetic, and unfailingly respectful of the court’s justices and staff. Roberts has been chief justice during some of the court’s most contentious times. Major decisions like overturning Roe v. Wade (which Roberts sought to avoid) have galvanized many against the court.

According to recent polling, fewer than half of Americans (47 percent) hold a favorable opinion of the court (51 percent have an unfavorable view). Of course, that level of support should inspire envy in the court’s critics in Congress (18 percent approval) and the media (which only 32 percent trust).

Some, however, want to express their dissatisfaction more directly and even permanently. This week, Alaskan Panos Anastasiou, 76, was indicted with 22 federal charges for threatening to torture and kill the six conservative justices. Another man, Nicolas Roske, 28, will go on trial next June for attempting to assassinate Associate Justice Brett Kavanaugh.

In the meantime, law professors have rallied the mob, calling for them to be more aggressive against the conservative justices and even calling for Congress to cut off their air conditioning to make them retire.

Politicians have also fueled the rage against the court. On one infamous occasion, Senate Majority Leader Chuck Schumer (D-N.Y.) declared in front of the Supreme Court, “I want to tell you, [Neil] Gorsuch, I want to tell you, [Brett] Kavanaugh, you have released the whirlwind, and you will pay the price.”

Yet, it is what has occurred inside the court that should be most troubling for Roberts. On May 2, 2022, someone inside the court leaked to Politico a copy of the draft of the opinion in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade. It was one of the greatest breaches of ethics in the court’s history. The subsequent investigation failed to produce any charges for the culprit or culprits.

Now, the New York Times has published highly detailed accounts of the internal deliberations of the court. The account seemed largely directed at the conservative justices and Roberts. Some of the information on deliberations in three cases (Trump v. Anderson, Fischer v. United States, and Trump v. United States) had to come either directly or indirectly from a justice. Some of these deliberations were confined to members of the court.

Seeing a pattern in this and past leaks, one law professor, Josh Blackmun, even went so far as to suggest that it is “likely that [Justice Elena] Kagan, or at least Kagan surrogates, are behind these leaks.” That remains pure speculation. Yet after the earlier Dobbs leak, Roberts is now dealing with leaks coming out of the confidential conference sessions and memoranda of the justices. This occurs after Roberts pledged that security protocols had been strengthened to protect confidentiality.

The disclosure of this information to third parties violates Canon 4(D)(5) of judicial ethics: “A judge should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s official duties.”

Roberts and the court have long maintained that judicial ethics rules that apply to other federal judges are merely advisory for them. However, some in Congress are now pushing for new binding ethics rules that could make fundamental changes to the court. Justice Kagan is supporting the ethical changes, which would allow lower court judges to render judgment on the justices. Justice Ketanji Brown Jackson also declared publicly that she does not “have any problem” with an enforceable ethics code for the Supreme Court.

A truly “enforceable” code would presumably allow the lower court judges appointed by the chief justice to compel the removal of a justice from a given case. That could flip the outcome on a closely divided court.

Given the latest leak, what would such a panel do with a justice who has breached the confidentiality of internal judicial deliberations? Under the Constitution, a justice can be removed by Congress only through impeachment. Impeachment of a justice has happened only once, in 1805, when Associate Justice Samuel Chase was acquitted.

Roberts has the demeanor and decency of a great chief justice. Despite those strengths, however, some are now wondering if he has the drive and determination to confront his colleagues on a worsening situation at the court. Many years ago, I believed that Roberts erred in failing to publicly rebuke Justice Samuel Alito for publicly displaying disagreement with President Barack Obama during a State of the Union address. Although I was sympathetic with Alito’s objections to Obama’s misleading statements about the Citizens United ruling, it was still a breach of judicial decorum.

Roberts is a good chief in bad times. He can hardly be blamed for the alleged abandonment of the most fundamental ethical principles by justices or clerks. Yet, the court is now in an undeniable crisis of faith. For decades, institutional faith and fealty have maintained confidentiality and civility. Once again, that tradition has been shattered by the reckless and self-serving conduct of those entrusted with the court’s business.

For a man who truly reveres the court, it is an almost Lear-like betrayal of an isolated and even tragic figure. It is time for an institutional reckoning for Roberts in calling his colleagues to account.

While there have been a few prior leaks, the Supreme Court has been largely immune from the weaponized leaks so characteristic of Washington. In a city that floats on leaks, the court was an island of integrity. And more has been lost at the court than just confidentiality. There is a loss of confidence, even innocence, at an institution that once aspired to be something more than a source for the New York Times.

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).

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Hunter Biden Loses Game of Chicken with Himself


By: Jonathan Turley | September 6, 2024

Read more at https://jonathanturley.org/2024/09/06/hunter-biden-loses-game-of-chicken-with-himself/

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.”

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Hunter Comes Up A Donut Short of a Defense in Delaware


By: Jonathan Turley | June 12, 2024

Read more at https://jonathanturley.org/2024/06/12/hunter-comes-up-a-donut-short-of-a-defense-in-delaware/

Below is my column in the New York Post on the conviction of Hunter Biden in Delaware and how his nullification strategy may have backfired. As discussed below, empathy can turn into insult when jurors are given patently implausible theories by the defense. Hunter finally found a group of people who were unwilling to see him as immune from responsibility for his conduct. Hunter literally came up a donut short of a defense in Wilmington.

Here is the column:

The conviction of Hunter Biden on all of the federal gun counts created a surprising new precedent in Delaware … for Hunter Biden. In terms of the law, this was the easiest judgment since the Jussie Smollett verdict. (Actually the Biden jury took a third of the time with a verdict in just three hours.)

For Hunter Biden, though, this was the first time he’s ever been held accountable for any criminal conduct, be it drug use, or prostitution, or tax evasion, or violations of various federal laws. To have that moment come in the hometown of the Bidens likely only magnified the shock.

Last year, I described the growing legal problems of Hunter Biden as the cost of “legal gluttony.” The Bidens have always been adept at avoiding accountability, particularly for the extensive influence-peddling operation that raked in millions in foreign payments.

That appetite for special treatment proved the undoing of Hunter, much like his appetite in other areas of his life. Hunter and his team expected the same level of immunity when he worked with special counsel David Weiss to cut an astonishing deal to avoid any real punishment for these or other crimes. Even before the deal was cut, Weiss allowed major crimes to expire under the statute of limitations (despite having an agreement to extend that period). He also agreed to a deal that would have avoided any jail time and would have given Hunter an immunity bath that would have drowned the entire criminal code. Hunter and his legal team succeeded in securing this sweetheart deal, which shocked many of us.

More importantly, it shocked US District Judge Maryellen Noreika, who only had to question the immunity provision to have the entire agreement fall apart in open court. The prosecutor admitted that he had never seen a plea bargain like this in his long career. That’s when the legal gluttony became even more pronounced. Rather than fight to preserve key elements of the plea agreement, defense counsel said, “Just rip it up.” Later, the special counsel said the Hunter defense team would not agree to a compromise agreement and instead forced the matter to trial.

I wrote before the trial that the defense was insane to try the case rather than plead guilty. A plea would have virtually guaranteed that there would be no jail time in the case. Instead, the defense launched an open jury nullification effort to get the jury to simply ignore the evidence. In the hometown of the Bidens, this was the best jury pool that Hunter could hope for. However, the nullification strategy was another manifestation of a gluttonous appetite.

Hunter Biden was still demanding a pass in a case where guilt was unavoidably and undeniably obvious to everyone. Defense counsel Abbe Lowell made a series of defenses that collapsed within the first two days in spectacular fashion.

Lowell suggested that someone else checked the box on the form and that Hunter may have had a brief window of sobriety or non-drug use. Hunter’s own words played from his audiobook knocked down much of those arguments, and a store employee recounted watching Hunter fill out the form.

In the first interview with a juror, Fox News seemed to confirm that the Biden defense overplayed its hand. The juror raised the text messages showing Hunter trying to score drugs at a 7-Eleven. Lowell suggested that he might have been at the store buying a donut. However, the juror noted that Hunter stated in his book that the 7-Eleven was his favorite spot for buying drugs, just as his texts indicated. He clearly viewed the story as more hole than donut. It is an example of how an all-you-can-eat defense can fail to even get a donut from a sympathetic jury.

The problem now is that this all played out in front of the judge who will now sentence Hunter.

Noreika witnessed the attempt to secure the sweetheart deal and then the disaster in open court. She watched as a defendant not only refused to admit guilt but decided to put on an obvious jury nullification defense.

That history could weigh in favor of a short jail stint for Hunter, a risk that would have been effectively eliminated by a guilty plea.

Hunter will now face an even greater risk in Los Angeles on the more serious counts of tax evasion. It is, again, an open-and-shut case.

I expect that he will plead guilty in that case. If Delaware made any impression on Hunter, it is that there are real costs to allowing your appetite to exceed your limitations.

Jonathan Turley is an attorney and professor at George Washington University Law School.

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Garland’s Moment of Truth: With the Perjury Referral, the Attorney General Faces a Clear Choice Between Principle and Politics


By: Jonathan Turley | June 6, 2024

Read more at https://jonathanturley.org/2024/06/06/garlands-moment-of-truth-with-the-perjury-referral-the-attorney-general-faces-a-clear-choice-between-principle-and-politics/

“Conscience doth make cowards of us all.” Those words from Hamlet captured the moral dilemma for many of us as we face the costs of conscience.

For each of us, there often comes a moment when our principles are put to an undeniable and unavoidable test. It may be as simple as cheating on a test, shoplifting a product, or admitting to a wrong. It is natural to want to avoid such moments, particularly when we cannot even admit to ourselves that we may not be the person we have long claimed.

For Attorney General Merrick Garland, that moment of truth has finally arrived. Garland has long maintained that he is an apolitical attorney general who does not even consider the political consequences of his actions. Over the last three years, some of us have questioned that commitment in a series of actions or, more importantly, non-actions. Yet, Garland has always been able to evade responsibility by shifting decision-making to others or claiming a lack of knowledge.

Yesterday, Garland ran out of room to maneuver when three House committees (Oversight, Judiciary, and Ways and Means) sent him formal referrals for the perjury prosecution of Hunter Biden and his uncle, James Biden. The evidence of false answers to Congress is overwhelming and Garland’s department has prosecuted Trump associates and others with far less in past cases, including the prosecution of former Trump National Security Adviser Michael Flynn.

Here is the Committee’s summary of the allegations, which I also previously discussed in a column:

During his deposition, Hunter Biden made false statements about holding a position at Rosemont Seneca Bohai (RSB), a corporate entity that received millions of dollars from foreign individuals and entities who met with then-Vice President Biden before and after transmitting money to the RSB account that then transferred funds to Hunter Biden. After deposing Hunter Biden, the Committees obtained documents showing Hunter Biden represented that he was the corporate secretary of RSB.

Additionally, Hunter Biden during his testimony relayed an entirely fictitious account about threatening text messages he sent to his Chinese business partner while invoking his father’s presence with him as he wrote the messages.  Hunter Biden testified he had transmitted this threat to an unrelated individual with the same surname. However, documents released by the Committee on Ways and Means demonstrate conclusively that Hunter Biden made this threat to the intended individual, and bank records prove Hunter Biden’s Chinese business partners wired millions of dollars to his company after his threat.  A portion of the proceeds has been traced to Joe Biden’s bank account.

During James Biden’s transcribed interview, he stated that Joe Biden did not meet with Tony Bobulinski, a business associate of James and Hunter Biden, in 2017 while pursuing a deal with a Chinese entity, CEFC China Energy. His statements were contradicted not only by Mr. Bobulinski, but Hunter Biden.  Mr. Bobulinski also produced text messages that establish the events leading up to and immediately following his meeting with Joe Biden on May 2, 2017.

These are straight-forward questions and answers. More importantly, both men knew and prepared for these questions. They were widely discussed before their testimony. They appear to have knowingly lied. The question is what Garland is now prepared to do about it.

For Garland, a bill has come due. I supported his appointment as Attorney General because I respected his integrity and intellect as a federal judge. I believed his claim that he would not allow political considerations to cloud his judgment. I grew more critical as I saw Garland struggling to avoid decisions that would work against President Biden or his family.

Now, Garland has what appears flagrant perjurious statements made by the President’s son and brother. Given the fact that these were anticipated questions, the false answers appear premeditated and egregious. Hunter and Jim Biden displayed a sense of impunity in denying facts that the committees (and many commentators) believe are well established on the available evidence. Those facts were highly embarrassing to the Biden family and they allegedly chose to lie rather than admit to them.

The fact that such alleged false statements occurred in the midst of an impeachment investigation only magnifies the concerns. This was an effort to establish the President’s knowledge of a massive corrupt influence peddling operation maintained by his family.

The gun charge in Delaware is a relatively minor criminal allegation. This is far more serious and could impose far greater punishment for the President’s son.

In the Trump cases, the Justice Department moved with impressive speed in going to grand juries against figures for false statements or contempt of Congress. There was little handwringing, no hem and hawing.

So, Garland’s moment of truth has arrived. He will either have to meet it or shrink from it. Either way, the Attorney General is about to give the full measure of himself and his office.

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Crime, Political

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The Closing: Trump’s Final Argument Must Be Clarity to Chaos in Merchan’s Courtroom


By: Jonathan Turley | May 28, 2024

Rerad more at https://jonathanturley.org/2024/05/28/the-closing-trumps-final-argument-must-be-clarity-to-chaos-in-merchans-courtroom/

Below is my column in the New York Post on the closing arguments scheduled for today in the trial of former President Donald Trump.  The column explores the key elements for a closing to bring clarity to the chaos of Judge Juan Merchan’s courtroom.

Here is the column:

With the closing arguments set for Tuesday in the trial of former president Donald Trump, defense counsel is in a rather curious position. There is still debate among legal experts as to the specific crime that District Attorney Alvin Bragg is alleging.

Trump’s lawyers are defending a former president who is charged under a state misdemeanor which died years ago under the statute of limitations. It was then zapped back into life in the form of roughly three dozen felonies by claiming that bookkeeping violations — allegedly hiding payments to Stormy Daniels to ensure her silence about a supposed affair with Trump — were committed to hide another crime. But what is that second crime? Even liberal legal analysts admitted that they could not figure out what was being alleged in Bragg’s indictment. Now, after weeks of trial, the situation has changed little.

Originally, Bragg referenced four possible crimes, though he is now claiming three: a tax violation or either a state or federal campaign financing violation. The last crime is particularly controversial because Bragg has no authority to enforce federal law and the Justice Department declined any criminal charge. The Federal Election Commission (FEC) did not even find grounds for a civil fine.

Judge Merchan has ruled that the jury does not have to agree on what that crime is. The jury could split into three groups of four on which of the three crimes were being concealed and Merchan will still treat it as a unanimous verdict.

The jury has been given little substantive information on these crimes, and Merchan has denied a legal expert who could have shown that there was no federal election violation.

This case should have been dismissed for lack of evidence or a cognizable crime. The jury will be reminded that the burden is on the government, not the defense. However, the presumption of innocence is often hard to discern in criminal cases. Most jurors believe that clients are sitting behind the defense table for a reason. That is why many prosecution offices have conviction rates in the 80%-90% range. That presumption is even more difficult to discern when the defendant is named Trump, and the jury sits in Manhattan.

Three-legged Stool

A classic closing pitch by lawyers is to use a physical object like a three-legged stool. If any leg is missing, the stool collapses.

In this case, the government needs to show that there was a falsification of business records, that the records were falsified to conceal another crime and that Donald Trump had the specific intent to use such “unlawful means” to influence the election.

Even a cursory review of the evidence shows this case does not have a leg to stand on.

The First Leg: Falsification of Records

The dead misdemeanor that is the foundation for this entire prosecution requires the falsification of business records. It is not clear that there was such falsification or that Trump has any knowledge or role in any falsification.

Witnesses testified that Trump would sign checks prepared by others and that the specific checks in this case were signed while Trump was serving as president. Some of these checks, labeled “legal expenses,” were allegedly for attorney Michael Cohen to pay off Stormy Daniels.

Most importantly, Jeffrey McConney, the Trump Organization’s retired controller and senior vice-president, testified that it was not Trump who designated these payments as “legal expenses.” Rather, the corporation used an “antiquated” drop-down menu where any payments to lawyers were designated “legal expenses.” There is a plausible reason why payments to an attorney were listed as legal expenses.

The government also cites the designation of payments to Cohen as part of his “retainer,” which included reimbursement for the payment of the Daniels non-disclosure agreement. However, that designation was the result of discussions between Cohen and former Trump Organization CFO Allen Weisselberg, who is sitting in a jail cell in New York City. The government could have called Weisselberg, but did not.

The government has made a big deal over the fact that retainer agreements are supposed to have written contracts. However, that was the failure of Cohen, who was later disbarred as an attorney.

For a businessman like Weisselberg, monthly payments to an attorney could have seemed perfectly logical. Once again, there was no evidence that Trump knew of how the payments were denoted.

The Second Leg: The Secondary Crime

The government must also show that any falsification was done to further or conceal another crime. This is where the defense needs to bring greater clarity to its own narrative. Trump’s team needs to drive home that a non-disclosure agreement is common in political, business and entertainment circles. The payment of money to quash a story before an election is neither unlawful nor unusual.

Indeed, Keith Davidson, Stormy Daniels’ attorney, described the NDA as routine and said that it was not hush money but a simple contractual transaction: “It wasn’t a payoff. It wasn’t hush money. It was consideration.”

This is where the testimony of David Pecker, the former publisher of the National Inquirer, was particularly damaging to the government.

Pecker detailed how killing such stories was a common practice at the National Inquirer and that he had done so for Trump for over a decade before he ran for president. He also killed stories for an impressive list of other celebrities, including Tiger Woods, Mark Wahlberg, Rahm Emanuel and Arnold Schwarzenegger.

Merchan has allowed the jury to repeatedly hear of “election violations,” while blocking a legal expert to explain that there is no federal election law violation. The payment of hush money is not a campaign contribution and, again, the federal government not only declined to bring any criminal charge but found no basis for even a civil fine.

Had he been allowed to testify, Bradley Smith, the former Federal Election Commission (FEC) chairman, would have explained that, even if it were a campaign contribution, it would not have been needed to be filed until after the election — demolishing the notion that this was an effort to influence an election that would have run before any filing had to be made.

The defense has to hammer away on the fact that no one has testified that it was a federal campaign violation.

Various witnesses, including former Trump aide Hope Hicks, testified that Trump was motivated to protect his family from embarrassment. She recounted how Trump even “wanted me to make sure the newspapers weren’t delivered to their residence that morning.”

Pecker testified that he previously killed stories about Trump going back over a decade. That included stories that were demonstrably untrue, such as a claim of a doorman that he fathered a child out of wedlock.

In addition to being a married man, Trump was the host of a major television program subject to a scandal clause. He was also an international businessman. Given all of those interests, it is impossible to claim absolutely that the campaign was the reason for the NDA, which was chump change for a billionaire.

The Third Leg: Criminal intent

The government spent considerable time proving facts not in dispute. There is no dispute that there was a NDA or that Trump signed checks on these payments. It is like repeatedly telling a court that a driver drove 55 miles an hour down a highway and elected to change lanes with a signal. The intent is to convince the jury that somehow proving that an NDA was paid and that an affair occurred is proof of an offense. It is not.

The supervisor in charge of processing payments said that permission to cut Cohen’s checks came not from Trump, but from Weisselberg and McConney. Trump’s White House secretary, Madeleine Westerhout, testified that it was common for Trump to sign checks in the White House without reviewing them.

The entire basis for the alleged criminal intent is Michael Cohen, a disbarred lawyer and serial perjurer. Yet even Cohen did not offer a clear basis for showing a criminal intent to use unlawful means to influence the election. Everything Cohen described could be true and only show a desire to kill an embarrassing story before an election — again, not a crime.

Cohen described the mechanics on the payments, but the only person who discussed these payments in detail with Cohen was Weisselberg.

Even liberal experts on CNN admitted that Cohen was trashed on the stand. The only crime that was clearly established in this trial was the grand larceny that Cohen admitted to under oath (after the statute of limitations had run out). Cohen said that he stole tens of thousands from the Trump corporation, a crime far more serious than the dead misdemeanor or even the felonies alleged against Trump.

However, the most significant testimony by Cohen may be his latest alleged perjury in front of the jury.

Many of us guffawed when Cohen claimed that he secretly taped Trump to protect him and keep Pecker honest. No one can explain how that could possibly be true. If it were, he would have told Trump. There is nothing in the call that would have any impact on Pecker, and Cohen admitted to regularly taping others without telling them.

Another alleged perjury came with the key telephone call in which Cohen claimed Trump was informed that the Daniels deal was concluded. The defense showed that that 96-second-long call was to Trump’s bodyguard, Keith Schiller, in late October 2016. It was preceded and followed by text messages that clearly shows that the conversation was about a teenager harassing Cohen, not the NDA.

Other witnesses trashed Cohen as unprofessional, prone to exaggeration, bitter against Trump, at times suicidal over being denied positions like attorney general and simply “a jerk.” Hope Hicks, a former aide to Trump, said that Cohen “used to like to call himself Mister Fix It, but it was only because he first broke it.”

Those were the government’s witnesses.

Cohen’s lack of credibility and his admitted financial interest in attacking Trump only highlight again the absence of Weisselberg, whom Cohen references repeatedly as the key person making decisions on how these payments were made and described.

If what Cohen said was true, corroboration was sitting a car ride away in Rikers Island. Traffic may be bad but it is not that bad. The only reason not to call Weisselberg was that he would contradict Cohen.

The prosecution preferred to use a serial perjurer who roughly half of the country views as dishonest as almost the entirety of their case. Even beyond Weisselberg, there is no corroboration for Cohen’s vague allegations on the record.

In the end, this three-legged stool is the very thing that all of us must stand on when accused. Who on the jury would want to stand on this stool with their own liberty at stake?

In the end, the defense needs to be honest with these jurors. The question is whether hatred for this man is enough to ignore the obvious injustice in this case. They may have come to this case with little doubt about Donald Trump, but the question is whether there is not any reasonable doubt about the crimes alleged against him.

In the end, we are all standing on that wobbly stool when the government seeks to convict people without evidence or even a clear crime. If we allow a conviction, it is more than a stool that will collapse in this Manhattan courtroom.

Jonathan Turley is an attorney and professor at George Washington University Law School.

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Law, Political

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Did Michael Cohen Commit Perjury in the Trump Trial?


By: Jonathan Turley | May 16, 2024

Read more at https://jonathanturley.org/2024/05/15/did-michael-cohen-commit-perjury-in-the-trump-trial/

Below is a slightly expanded version of my column in the New York Post on the first day of cross examination for Michael Cohen. He still has one day of cross examination ahead of him on Thursday. With the government resting after Cohen’s cross examination, I believe that an honest judge would have no alternative but to grant a motion for a directed verdict and end the case before it goes to the jury. Judge Juan Merchan will now have to give the full measure of his commitment to the rule of law. Given the failure to support the elements of any crime or even to establish the falsity of recording payments as legal expenses, this trial seemed to stumble through the motions of a trial. Michael Cohen was only the final proof of a raw political exercise. For critics, some of Cohen’s answers appear clearly false or misleading. Like their star witness, the prosecutors have shown that they simply do not take the law very seriously when there is an advantage to be taken. Cohen has truly found a home with the office of Manhattan District Attorney Alvin Bragg.

Here is the column:

On Tuesday, the prosecution surprised many by suddenly announcing that it would rest its case against former president Donald Trump with the completion of testimony by Michael Cohen. It was surprising because the prosecution never clearly stated the crime that it was proving, the elements of that crime, or even why denoting payments related to Stormy Daniels were not properly recorded as legal expenses. Indeed, the only thing the prosecutors proved was that, in the pantheon of dishonesty, there are liars, pathological liars . . . and Michael Cohen.

Cohen spent the last two days insisting that he used to be a liar but lied to help former President Donald Trump. If that is the thrust of his testimony, it is just the latest lie told by Cohen under oath. Cohen has lied to Congress, courts, special counsels, the IRS, the banks, and virtually every creature that walks or crawls on the face of the Earth. Notably, his past conviction for business and tax fraud were not taken in the interests of Trump but himself.

When he admitted on the stand that he lied during his prior plea agreement, that was not to assist Trump who he had already denounced. It was to advance his own interests. There is every indication that Cohen is still lying.

Cohen repeatedly said that he could not remember even recent calls after recounting calls from eight years ago with crystal clarity. He said that he could not remember key exchanges and statements. However, these paled in comparison to other glaring moments. Take, for example, his testimony on his unethical decision to secretly record a Sept. 6, 2016 telephone call with Trump. It was a breathtaking betrayal that most lawyers would not contemplate, let alone carry out.

When asked by the prosecutors about that act, Cohen bizarrely claimed that he did so to guarantee that David Pecker, the former publisher of the National Enquirer, would “remain loyal to Mr. Trump.”

No one seriously believes that this is true. It does not even make sense. Pecker was speaking to Trump about the payments and even met with him at the White House. Playing for him a call with Trump would produce nothing but confusion rather than pressure for Pecker. Moreover, why would Cohen tape the call without letting Trump know? The obvious motive was to squirrel away material to use against Trump if he ever needed a little leverage.

Again, it was for Cohen.

Cohen’s testimony showed that he has consistently acted in his sole interest. After portraying his sudden cooperation with prosecutors as a type of Road to Damascus, jurors learned that all roads lead back to Cohen and his bank accounts. After telling the jury that he has dedicated his life to righting the wrongs of Trump and holding him accountable, he admitted that he repeatedly acted to undermine the prosecution in order to make a buck.

Told by prosecutors to stop doing public interviews, Cohen did not care. He did roughly two dozen television appearances and recorded hundreds of podcast episodes. He admitted that Trump is mentioned in virtually every episode, of which he did roughly four a week. He recounted how he raked in millions on books, including one titled “Revenge.” He admitted that he is selling items like a $32 shirt with a photo of Trump in a jumpsuit behind bars and a coffee mug with the phrase “send him to the big house, not the White House.” He is also peddling a reality show called “The Fixer,” in which he promises viewers, “I am your fixer.”

After just a few hours of cross examination, it was clear that Cohen is the same grifter saving himself — one Venmo at a time. Yet, Cohen continued to reframe reality in his own self-constructed image.

When asked about his TikTok antics, he portrayed his postings as a type of sleep deprivation therapy, explaining that “having a difficult time sleeping and [he] found an out.”

No sane prosecutor would rely on Cohen, let alone make him the entirety of their case.

The prosecutors did not even bother to show that Trump was responsible for or knew about how the payments were recorded on ledgers and business records. They also just shrugged away the need to show why denoting these payments as “legal expenses” was fraudulent — or what the correct description might be. Those details might be demanded in any other courtroom, but this is New York and the defendant is Donald Trump.

For Bragg and his team, it is all about what they can get out of this case despite the law. In that sense, they found a kindred spirit in their star witness, and Michael Cohen has finally found a place that values what he calls on his reality show promo his “particular set of skills.”

Jonathan Turley is an attorney and professor at George Washington University Law School.

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Law, Political

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Michael Cohen Goes on TikTok with New Trump Taunt … and Announces Campaign for Congress?


By: Jonathan Turley | May 9, 2024

Red more at https://jonathanturley.org/2024/05/09/michael-cohen-goes-on-tiktok-with-new-trump-taunt-and-announced-campaign-for-congress/

Fox is reporting that Michael Cohen was back on TikTok last night using the Trump trial to troll for dollars. Cohen reportedly appeared in a teeshirt showing Trump in an orange jumpsuit and asked for more followers. He also reportedly announced his candidacy for Congress, which would allow him to take one of the seemingly few oaths that the serial perjurer has not violated.

Who would have thought that District Attorney Alvin Bragg calling a porn star to the stand would be the moral high ground for key witnesses?  Next could be a disbarred, convicted perjurer who is still seeking to make money off the case.

Cohen previously pledged not to discuss the trial after many of us objected to Judge Juan Merchan’s gag order as unconstitutional, particularly as to Cohen who has continued to attack Trump on the air while defending the gag order for his own protection.

Cohen’s prior promise lasted a record of a couple days before he broke it on TikTok. Now he is appearing with a tee-shirt mocking Trump and using the moment to pursue a congressional seat.

For Judge Merchan, this is precisely what he was warned about. He has stubbornly enforced his poorly written and excessively broad order. After admitting that this was a “case of first impression” on the extension of gag orders to such things as repostings on social media, Merchan clarified his meaning not with a new order but by imposing sanctions on Trump.

Trump is now appealing the gag order and Cohen is doing his best to undermine not just his residual credibility but that of the court. Between the lurid testimony of Daniels and the continued antics of Cohen, Merchan looks completely feckless, if not farcical, in his own courtroom.

For Merchan and the prosecutors, none of this can come as a surprise.

There is an old fable of a scorpion who wants to cross a river and convinced a hesitant frog to carry him on its back. After all, if he stung the frog in the river, they both would die. That seemed logical so the frog agreed to do so only to have the scorpion deliver a lethal sting halfway across. When the frog asked why the scorpion would doom them both, the scorpion replies: “I am sorry, but I couldn’t resist the urge. It’s in my nature.”

Cohen has always been open as a grifter.

The problem is not Cohen. He continues to act to his nature. The problem is a political and legal system that enables him as a serial liar. It is a system that continues to call Cohen to the stand and ask him to swear to God to offer the “truth, the whole truth, and nothing but the truth” without a signature joke drum roll before his punchline.

Yet, Cohen now wants to take an oath of office in the legislative branch.  He seems to collect oaths the way some collect animal heads for a trophy wall. The question is whether other members could suppress laughter when he swears that he is taking the oath of office “without… purpose of evasion.”

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Law

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Stormy Daniels Day: Alvin Bragg Lights Dumpster Fire in Manhattan


By: Jonathan Turley | May 8, 2024

Read more at https://jonathanturley.org/2024/05/08/stormy-daniels-day-alvin-bragg-lights-dumpster-fire-in-manhattan-courtroom/

Below is my New York Post column on the unseemly scene in the courtroom of Judge Juan Merchan as prosecutors used porn star Stormy Daniels to present lurid details on her alleged tryst with former president Donald Trump. It was a dumpster fire that Judge Merchan watched burn for a full day and then said the jury may have to disregard much of what they saw and heard.

Here is the column:

Before the start of the Manhattan prosecution of former president Donald Trump, I characterized the case of District Attorney Alvin Bragg as based on a type of obscenity standard.

In a 1984 pornography case, Supreme Court Justice Potter Stewart wrote “I shall not today attempt further to define [obscenity]. . . . But I know it when I see it.”

Bragg has refused to clearly define the crime that Trump was seeking to conceal when payments for a non-disclosure agreement were listed as a legal expense. We would just know it when we saw it at trial. We are still waiting, but this week, Bragg seems to be prosecuting an actual obscenity case.

The prosecution fought with Trump’s defense counsel to not only call porn star Stormy Daniels to the stand, but to ask her for lurid details on her alleged tryst with Trump. The only assurance that they would make to Judge Juan Merchan was that they would “not go into details of genitalia.” For Merchan, who has largely ruled against Trump on such motions, that was enough. He allowed the prosecutors to get into the details of the affair despite the immateriality of the evidence to any criminal theory.

Neither the NDA nor the payment to Daniels is being contested. It is also uncontested that Trump wanted to pay to get the story (and other stories, including untrue allegations) from being published.

The value of the testimony was entirely sensational and gratuitous, yet Merchan was fine with humiliating Trump. Daniels’ testimony was a dumpster fire in the courtroom.

The most maddening moment for the defense came at the lunch break when Merchan stated, “I agree that it would have been better if some of these things had been left unsaid.” He then denied a motion for a mistrial based on the testimony and blamed the defense for not objecting more. That, of course, ignores the standing objection of the defense to Daniels even appearing, and specific objections to the broad scope allowed by the court.

This is precisely what the defense said would happen when the prosecutors only agreed to avoid “genitalia.” There was no reason for Daniels to appear at all in the trial. Even if he was adamant in allowing her, Merchan could have imposed a much more limited scope for her testimony. He could also have enforced the limits that he did place on the testimony when it was being ignored by both the prosecutors and the witness.

Merchan said that he is considering a limiting instruction for the jury to ignore aspects of the testimony. But that is little comfort for the defendant.

The court was told that this would happen, it happened, and now the court wants to ask the jury to pretend that it did not happen. Merchan knows that there is no way for the jury to unhear the testimony. More importantly, the prosecution knew that from the outset.

Daniels appeared eager to share the stories for the same reason that she was eager to sell her story. While she said that she “hates” Trump and wants him “held accountable,” Daniels is no victim. She had an alleged tryst with Trump and then sought to cash in on the story.

It is a standard form of extortion of celebrities. She later sought to cash in on the notoriety by appearing in strip clubs as part of a “Make America Horny Again” tour. She is in her element in Merchan’s courtroom.

In New York, the relevance or credibility of witnesses like Daniels is largely immaterial.

This is a district that voted against Trump, 84.5% to 14.5%, in the 2020 presidential election.

New Yorkers elected a state attorney general, Letitia James, who ran on the pledge to bag Trump on something — without specifying any crime.

Bragg then indicted Trump without clearly defining any crime — a debate that continues among legal experts after two weeks of testimony.

This is entertainment for many in New York — as is the thrill of the possibility of his going to jail under Merchan’s poorly written and arguably unconstitutional gag order.

When it comes to a thrill kill trial, who better to call than Daniels?

After all, she has been treated as a heroine by many, even being given the key to the city of West Hollywood, California, on “Stormy Daniels Day.”

Well, it was Stormy Daniels Day in Judge Merchan’s courtroom this week, and it is a bit late for the court to express shock over her testimony.

It is not the witness, but the case that seems increasingly obscene.

  • You have a judge who should have recused himself given his daughter’s major role as a Democratic activist and fundraiser.
  • You have a gag order that is allowing a New York Supreme Court justice to regulate what the leading candidate for the presidency may say in an election on the weaponization of the legal system.
  • You have a case based on two dead misdemeanors shocked back into life by a still mysterious theory of an undefined crime.

In comparison, Daniels may be the only authentic part of the entire case in New York v. Trump.

Jonathan Turley is an attorney and professor at George Washington University Law School.

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Jonathan Turley Op-ed: A Disbarred, Serial Perjurer Walks into a Court and Asks to Take an Oath…Seriously, No Joke


By: Jonathan Turley | May 6, 2024

Read more at https://jonathanturley.org/2024/05/06/a-disbarred-serial-perjurer-walks-into-a-courtroom-and-asks-to-take-an-oath-seriously-no-joke/

C-Span/YouTube Screenshot

Below is my column in The Hill on the expected appearance of Michael Cohen in the Manhattan trial of former president Donald Trump. It will be a scene that is both mesmerizing and repellent for many, particularly in the bar.

Here is the column:

A disbarred, serial perjurer walks into a courtroom and asks to take an oath . . . No, seriously, this is not a joke. Michael Cohen will soon appear in a Manhattan courtroom in what is sure to be one of the most bizarre moments in legal history.

Cohen nearly comprises the prosecution’s entire case against former President Donald Trump under a criminal theory that still has many of us baffled. It is not clear what crime Trump was supposedly trying to conceal by making “hush-money” payments to former porn actress Stormy Daniels. What is clear is that none of the witnesses called in recent weeks has had any direct involvement with Trump on the payments. The witnesses had a lot to say about Cohen, and most of it was not good. They described an unprofessional, self-proclaimed “fix-it man” who created a shell corporation to buy out Daniels with his own money. The money was later paid back by Trump after the election, with other legal expenses.

So, Cohen will now make the pitch to the jury that they should put his former client in jail for following his own legal advice. This would be difficult even for a competent and ethical lawyer. For Cohen, it is utter insanity. But Bragg is betting on a New York jury looking no further than the identity of the defendant to convict.

Cohen has an impressive history of lies and exaggerations that may be unparalleled. Just weeks ago, another judge denounced him as a serial perjurer who was still gaming the system. This is not the defendant, mind you, but Alvin Bragg’s star witness.

I have been an outspoken critic of Cohen going back to when he was still representing Trump. His unethical acts were matched only by his unprofessional demeanor. In 2015, after students on the Harvard Lampoon played a harmless prank on Trump, Cohen was quoted by a student on the Lampoon staff as threatening them with expulsion.

When a journalist pursued a story Cohen did not like, he told the reporter that he should “tread very f—ing lightly because what I’m going to do to you is going to be f—ing disgusting. Do you understand me?”

It is not hard to “understand” Cohen. He has long marketed his curious skill of voluntarily saying whatever the highest bidder wants him to say. He is a convicted perjurer who seems to lie even when the truth would do. Each time he is caught lying, he claims to be the sinner who has finally seen the light, seeking redemption.

When he was called before the House to testify against Trump soon after his plea agreement with the Justice Department (for lying), Cohen was again accused of perjury. House Oversight Chairman Elijah Cummings (D-Md.), warned Cohen repeatedly that he had better tell the truth this time. Cohen then testified that Trump wanted him to work in his administration and offered him multiple jobs, which he turned down. He also claimed, “I have never asked for, nor would I accept, a pardon from President Trump.” Multiple sources have said that Cohen’s lawyer pressed the White House for a pardon, and that Cohen unsuccessfully sought a presidential pardon after FBI raids on his office and residences last year.

Even after being stripped of his law license and sentenced to three years in prison, Cohen continued the pattern. In 2019, Cohen failed to appear to testify before the Senate Intelligence Committee, citing an inability to travel due to surgery. He was then seen partying before the hearing date with five friends.

Even while in jail, Cohen was accused of lying to a court, in violation of an order for early release due to medical problems. He was ordered back into custody after being spotted at a high-end restaurant.

But the most impressive moment came when Cohen was put back on the stand under oath and matter-of-factly claimed that he had lied in his prior hearing, when he pleaded guilty to lying.

In his 2018 guilty plea before U.S. District Judge William Henry Pauley III, Cohen admitted to this conduct under oath.

Then, when Cohen was asked by Trump’s counsel, “Did you lie to Judge Pauley when you said that you were guilty of the counts that you said under oath that you were guilty of? Did you lie to Judge Pauley?”

Cohen responded, “Yes.”  He was then again asked “So you lied when you said that you evaded taxes to a judge under oath; is that correct?” He again responded, “Yes.”

Most of us expected the Justice Department to bring new perjury charges at that point. It is rare that a defendant will actually take the stand and confess to perjury. However, Cohen was now useful again. This time, he was willing to deliver Trump. The Justice Department and Manhattan prosecutors were clearly willing to tolerate a little perjury for that prize.

Cohen’s conduct has already loomed large in the Manhattan proceedings. When Keith Davidson took the stand — the attorney who represented both Stormy Daniels and former Playboy model Karen McDougal — he recounted how Cohen was furious about not being offered a job in the White House. That directly contradicts Cohen’s congressional testimony. Davidson said that Cohen believed he might be named attorney general.

The account, if true, shows that Cohen is not only unethical, but also delusional. Cohen was found incapable of being an attorney, let alone an attorney general.

As prosecutors set the table for the grand arrival of their star witness, the testimony only got worse. David Pecker, the former owner of the National Enquirer, said charitably that Cohen was “prone to exaggeration.”

Davidson described Cohen’s profane and unprofessional conduct, stating that “the moral of the story is nobody wanted to talk to Cohen.” That may be the first time the word “moral” was used in the same line with Cohen.

Former Trump associate Hope Hicks mocked Cohen on the stand. She said that he constantly tried to insinuate himself into the campaign, without success, and that he “used to like to call himself Mister Fix It, but it was only because he first broke it.” Mind you, these were his fellow prosecution witnesses, not the defense.

These witnesses also contradicted the basis for the prosecution. Pecker said that he killed stories for various celebrities for years, and that he did so for Trump for over a decade before he ran for office. Davidson testified that he did not consider the deal to be “hush money” but simply “consideration” to kill bad press.

Hicks testified that she believed Trump wanted to kill the stories in significant part to protect his family from embarrassment.

Cohen could not even maintain a consistent position during the trial. Many of us have denounced the gag order on Trump that prevents him from responding to Cohen’s unrelenting attacks in the media. Cohen then promised to stop any further comments. That promise may have set a record for Cohen. He kept it for roughly three days before being accused of trolling for dollars on social media by attacking Trump.

District Attorney Bragg will now call this disbarred, serial perjurer to make the case against a former president. Under New York law, the oath administered by the court is supposed “to awaken the conscience and impress the mind of the witness in accordance with that witness’s religious or ethical beliefs.”

Before the bailiff administers the oath to Cohen, Judge Juan Merchan may have to warn spectators in the courtroom not to laugh. For anyone familiar with Cohen, it will sound like the ultimate punchline to a bad joke.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.

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David Hogg Group Hit With Allegations Over Spending Practices and Policies


By: JonathanTurley.org | April 9, 2024

Read more at https://jonathanturley.org/2024/04/09/david-hogg-group-hit-with-allegations-over-spending-practices-and-policies/#more-217734

(Official White House Photo by Adam Schultz)

Gun control activist David Hogg has been hit with allegations over the spending practices of his group Leaders We Deserve PAC. Conservative outlets are reporting that the group spent comparably little on actual candidates as opposed to travel and expenses. His prior counsel is a familiar name in such controversies in Washington: former Clinton campaign general counsel Marc Elias.

Hogg created a group in the aftermath of the 2022 midterm elections to elect Generation Z politicians to offices throughout the country. The group was given favorable national coverage in major media outlets. He explained that contributions would be used to elect young Democrat candidates:

“[We’re] trying to pick them and say, you know, we would like to help you run for office, we’ll supply you with all of the resources that you need and help basically coach you and hold your hand to get there, which is kind of the gap that’s in the space right now, for at least young people at the state legislative level.”

Federal filings reportedly show that year-end 2023, Leaders We Deserve raised over $3 million. That is impressive for its first year in operation.

The conservative sites allege that the group spent “only about $263,000 on its stated mission of electing candidates from Generation Z to office combined with donations to other Democrat Party committees and groups—and instead spent more than $1.4 million on disbursements to themselves for payroll and to political consulting firms and legal fees, in addition to travel and entertainment expenses like hotels, flights, and meals.” However, it reportedly spent more than $1,314,000 on travel and related expenses while giving $80,000 to the Elias Law Group.

Previously, when allegations of self-dealing and accounting improprieties were raised with regard to Black Lives Matter, the group’s attorney, Elias, immediately stood out for many. Elias resigned from his “key role” with BLM as the scandal exploded.

(MSNBC/via YouTube)

Elias’s name has now again popped up in the controversy involving Hogg, who is accused of raising millions to support liberal candidates but allegedly spending only $263,000 on such candidates while paying $83,000 to the Elias law firm. (These figures are reportedly from federal filings but neither Elias nor Hogg have specifically addressed the media reports).

Elias has long been a controversial figure, including being sanctioned in court. He was named as the key figure in hiding the funding of the Steele dossier by the Clinton campaign, which led later to a FEC fine. Reporters accused the campaign of lying to them about the funding. Elias was also reportedly with campaign chair John Podesta when he allegedly denied such funding to congressional investigators.

Despite accusing the GOP of election denial and manipulation, Elias was also involved in alleged gerrymandering efforts and challenging the outcome of elections based on alleged problems with voting machine tallies.

Back to the most recent controversy, Hogg could argue that, as a well-known activist figure, his travel to these campaigns is the boost that the group promised donors. He is the assistance. Likewise, the group could argue that it is still getting ramped up for greater spending efforts in the fall. As for the legal fees, the group could argue that start up legal fees and reporting fees tend to be higher at the outset.

The controversy does raise some novel questions about the purpose of contributions. Hogg coming to a local campaign is likely to generate media attention for a candidate. He can also claim that he and his staff bring needed expertise and advice to novice or young candidates. That could be their interpretation of the promise to “basically coach you and hold your hand to get there.” Critics are focused on the pitch to “supply you with all of the resources that you need.”

The group is only the latest political or business effort launched by Hogg, who previously tried to start a “progressive pillow company” before stepping away from the enterprise.

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Of Pings and Prosecutors: The Spectacular Imposition of the Willis-Wade Testimony


By: Jonathan Turley | March 6, 2024

Read more at https://jonathanturley.org/2024/03/06/of-pings-and-prosecutors-the-spectacular-imposition-of-willis-wade-testimony/

Below is my column in the New York Post on the expanding controversy surrounding the disqualification of Fani Willis and Nathan Wade. In today’s legislative hearing in Atlanta, counsel Ashleigh Merchant testified that cellphone records on one occasion show “pings” on Wade’s cellphone from his home to the vicinity of Willis’s home followed by a call to Willis and then hours of silence. The next morning, she claims, the data shows him going back to his home and texting Willis. It is only the latest example of how evidence against the two prosecutors is growing and possible explanations are dwindling in the case.  The greatest problem is how these allegations are beginning to mirror those against the defendants being prosecuted by Willis and Wade.

Here is the column:

When Fani Willis ran against her former boss Paul Howard in 2020, she highlighted the experience that she would bring to the position.

Howard was embroiled in a sexual harassment scandal involving his relationship with women in his office.

Willis offered both experience and ethical leadership, including pledging repeatedly that “I will certainly not be choosing to date people that work under me.”

Willis is now accused of the wrong type of relevant experience.

She and her lead prosecutor are not just accused of having an intimate relationship, but they are accused of some of the same underlying conduct that they are prosecuting in the election interference case against former President Donald Trump and other defendants. That includes allegations of filing false statements with courts and even influencing witnesses.

This week, another witness came forward with an explosive new allegation against Willis. In the prior hearings in Atlanta, Nathan Wade was confronted with what appears to be false statements made to the court in his divorce case, false statements that he repeated under oath in disqualification testimony. For example, Wade was asked about his denial of “a sexual relationship during the time of his marriage and separation” up to and including May 30, 2023.

That would obviously include the sexual relationship with Willis in 2022 and possibly earlier. Wade, however, denied any such sexual relationship and said he confined the question to sexual relations meaning an affair “in the course of my marriage.” Of course, his marriage was ongoing even during the divorce and the question asked about any relationship up to May 2023.

Wade and Willis have also been contradicted in their testimony by various witnesses who said they lied about their intimate relationship starting after he was hired in 2022. That includes prior text messages in which Wade’s former partner and lawyer Terrence Bradley repeatedly told opposing counsel that he was “absolutely” sure that the relationship began much earlier.

A former close friend of Willis also said they were lying.

This is notable because Wade and Willis brought 19 individual counts of false statements, false filings, or perjury against the defendants in their case. There are now substantial allegations that they may have committed the very same criminal conduct.

Now another prosecutor has come forward to say that Bradley also told her repeatedly and with complete clarity and certainty that Wade and Willis were involved long before his hiring. Those conversations allegedly occurred as late as January 2024 with Cindi Lee Yeager, a co-chief deputy district attorney for Cobb County.

What is even more alarming is Yeager’s account that she overheard Willis tell Bradley on the telephone that “they are coming after us. You don’t need to talk to them about anything about us.” If true, that call could raise questions of influencing potential witnesses.

Willis can legitimately point out that the calls was allegedly in September 2023, before Bradley was called as a witness and the current proceedings had started. However, it would indicate that Willis was aware that Bradley would be asked questions about past payments and relationships with him and his partner Wade.

If that seems loose, you should take a look at the case Willis brought against these defendants. Many of us have been critical of the overarching racketeering conspiracy alleged by Willis among the 18 defendants.

The false statement charges often dismiss plausible alternative interpretations or the paucity of evidence of intent.

They are also prosecuting the attempt to influence witnesses.

The question is whether Willis or Wade had other communications indirectly or directly with Bradley.

His testimony was widely panned and he showed all of the spontaneity and comfort of a hostage video.

Willis is a powerful political figure in Atlanta and Bradley did everything short of faking his death to avoid assisting in her disqualification.

The odds are that Judge Scott McAfee is not inclined to hold additional hearings. He is ready to rule.

It is hard to imagine these two prosecutors continuing with so many allegations hanging over the case. They have placed their personal interests before their office and their case.

However, the standard for disqualification is murky. For Willis, the case has become a modern political tragedy a la movie classic “All the King’s Men,” about a reformer who became everything that he once denounced in the corruption of powerful figures.

Willis ran against a district attorney accused of using his office to pursue sexual affairs and continues to claim that she “restored integrity” to her office through ethical leadership.

In her combative testimony, Willis attacked the media, opposing counsel and the public for questioning her actions. She declared, “You’re confused. You think I’m on trial. These people are on trial for trying to steal an election in 2020. I’m not on trial, no matter how hard you put me on trial.”

The question is whether the courts, prosecutors or bar officials will show the same vigor in pursuing these allegations against Wade and Willis that they have shown against their own defendants. If so, she could well find herself “on trial” as the allegations mount against her and her lead prosecutor.

Jonathan Turley is an attorney and professor at George Washington University Law School.

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Law

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