CCL's Peck Testifies Against Attorney Advertising Bill in Louisiana Senate Committee

May 5th, 2021

    CCL President Robert S. Peck told members of the Louisiana Senate Commerce and Consumer Protection Committee that S. 43, which would attempt to regulate attorney advertising was unconstitutional and should not be enacted.

     The legislation, nearly identical to a law enacted in West Virginia that Peck had successfully won an injunction against, was inconsistent with the First Amendment and unlikely to ever go into law. Moreover, Peck said, it does not accomplish what the sponsor had just testified it would. Before Peck spoke, bill sponsor Senator Barrow Peacock told committee members that the bill would prohibit advertisers from using the FDA or a Louisiana government logo and showed a video of an advertisement he said would be barred. The ad used the FDA logo to report what the FDA said about the drug.

     Peck said that the advertisement shown was completely legal, truthfully reporting about an FDA statement. The bill, however, only prohibited use of a logo if the use suggested that the lawyer was affiliated with the FDA, so it would have no application to the ad shown. In addition, he told the committee that the bill was nearly identical to one enacted in West Virginia over which he had brought a lawsuit that had been granted a preliminary injunction, indicating that he was likely to prevail in his constitutional challenge. He urged the committee no to pass a law that would never go into effect, just as the West Virginia law never did. Moreover, he warned that if someone like him brought a successful lawsuit challenging it, the State would end up paying the plaintiff's attorney fees.

    Peck also gave a detailed rendition of the bill's unconstitutional provisions. Nonetheless, by a 4-3 vote, the bill now moves to the Senate floor.

Peck Speaks at Seminar, Receives Award at Conference

April 24th, 2021

     CCL President Robert S. Peck spoke April 23 on bringing constitutional challenges at a seminar for the Workers' Injury Law and Advocacy Group (WILG) and then joined a reception at a conference of the International Municipal Lawyers Association (IMLA), where he received its Amicus Award.

     The WILG seminar introduced its lawyer-members to a new constitutional challenge resource developed by the organization. Members have grown concerned that states are passing laws that limit the eligibility and scope of benefits available through workers compensation to those injured in the workplace. Peck's remarks about the art and pitfalls of constitutional challenges covered different approaches and difficulties that the litigation often involves.

     The IMLA awards reception recognized Peck for his pro bono amicus brief in BP pllc v. Mayor and City Council of Baltimore, filed in the U.S. Supreme Court. The case was initiated by Baltimore in state court against major oil companies for their contributions to climate change and its impact on the city. The oil companies removed the case to federal court, but the federal court ordered the case remanded to state court when it found none of the grounds for removal were valid. Under a federal statute, an immediate appeal of that order was permissible because one of the grounds asserted for removal was that the oil companies' alleged liability was for work it did at the direction of the federal government. The U.S. Court of Appeals for the Fourth Circuit held that the federal government did not direct the oil companies and refused to consider alternative grounds for removal because the federal law giving a right of appeal was limited to "federal-officer" grounds.

      The scope of the authorized appeal was the issue before the Supreme Court. At oral argument, the IMLA brief written by Peck was mentioned twice, a testament to the importance of issues only raised by that brief. A decision in the case is still forthcoming.

Peck Continues to Answer Press Questions about Impeachment

February 12th, 2021

     CCL President Robert S. Peck continues to serve as a source for reporters covering the second impeachment trial of Donald Trump. Answering an array of questions about procedures, constitutional requirements, the legitimacy of trying a former president, the First Amendment and incitement, and other related topics, Peck has provided answers to CBS stations across the country,, the Scripps-Howard network, Newsmax, and USA Today. 

     In his interviews, Peck has said that the Constitution does not bar a Senate trial of a former president who was impeached while still in office and that the First Amendment provides no basis for exempting the January 6 exhortation of people gathered by the then-president for the explicit purpose of stopping the Electoral College count from conviction in an impeachment trial. He has also explained the "imminent lawless action" standard declared by the Supreme Court in Brandenburg v. Ohio (1969), as well as the rudimentary understanding of constitutional issues that defense counsel has shown in their briefing and time on the Senate floor.

Peck Explains Impeachment Issues on

February 8th, 2021

     On the cusp of the Senate impeachment trial of former President Donald Trump, CCL President Robert S. Peck told that the vast majority of constitutional scholars and lawyers agree that there is no constitutional bar to trying a former president.

      In response to a question about some senators claiming the trial is unconstitutional, Peck pointed out that the Constitution gives the Senate exclusive responsibility for trying all impeachments -- and that this impeachment took place while the Trump was still president. He added that a Senate conviction also allows that body to punish him with a vote that Trump could not again hold federal office. Even if no conviction occurs, the trial would have an important role in the court of history, Peck added.

Peck Answers Impeachment Questions for Two News Programs

January 25th, 2021

     With an impeachment trial in the Senate looming, news organizations asked CCL President Robert S. Peck about several questions about what the Constitution and courts have said.

       In an interview that followed the delivery of the article of impeachment to the Senate by the House managers, Newsy, a Scripps-Howard network, asked about the legality of trying a president on an impeachment charge after leaving office. Peck explained that the situation is largely unaddressed by the Constitution, but that historical precedent existed for trying a public official after leaving office, that 150 constitutional law professors, spanning the ideological spectrum, had signed a letter stating that there is no problem in such a trial, and that doing so makes it easier to justify a prohibition on seeking public office again. 

      Peck also told the network that the Supreme Court in a 1993 decision involving impeachment of a judge, had held that the trial was a "political question" that was not susceptible to judicial review. 

      In another interview, this time with WUSA-9, the Washington, DC CBS affiliate, Peck explained that the costs of legal representation in defending the impeachment charge falls to former President Trump. In the impeachment trial of a year ago, the Republican National Committee raised the money to pay for the defense. He noted that the House had hired two lawyers from the outside to assist with the prosecution, but that this did not involve extra expenditures but an allocation from within the House Judiciary Committee's existing budget.

Peck Interviewed on Presidential Impeachment

January 15th, 2021

     CCL President Robert S. Peck told WUSA-9, the CBS affiliate in Washington, DC that presidential impeachment trials differ from criminal trials because it is part of a constitutional process, informed by politics, that goes to the removal and possible disqualification of a president from future federal office, rather than potential fines and jail. Although the Constitution uses the terms "high crimes and misdemeanors," impeachment does not require a criminal offense and can be premised on a violation of the oath of office.

     Peck also pointed out that the Constitution specifies that criminal charges can still be brought against a person convicted after impeachment.

Peck Featured in Court TV Story on Supreme Court Case

January 14th, 2021

     CCL President Robert S. Peck told Court TV today that an upcoming Supreme Court case is about the right to appeal a decision sending a case back from federal to state court. In BP v. Mayor and City Council of Baltimore, the city sued oil and gas companies over their longstanding denial of the connection between fossil fuels and climate change, raising only state law issues and bringing the case in the Maryland courts. BP and its co-defendants removed the case to federal court, where they believed their federal defenses would receive a friendlier hearing. Among the rationales for removal were that they were operating at the direction of a federal officer. Of all the justifications, only federal-officer removal permits a right of appeal.

     The federal court, however, granted a motion to remand, finding no basis for federal jurisdiction. BP appealed to the Fourth Circuit, asserting that all eight grounds for federal removal were subject to appeal, not just the federal-officer issue. The Fourth Circuit rejected that argument. Next week, the Supreme Court hears the case to determine whether the statute that permits appeal of the federal-officer grounds also permits appeal of the other grounds as well.

    Peck filed an amicus brief on behalf of state and local government groups, arguing that the Fourth Circuit was correct and that the case should be returned to state court. In the Court TV interview, Peck explained the background of the law at issue and the arguments that each side would be making.

Peck Addresses Presidential Issues in Media Interviews

January 12th, 2021

     CCL President Robert S. Peck explained the scope of the pardon power and the meaning of the Fourteenth Amendment's Expulsion Clause in separate media interviews today. 

     To WUSA-9, the Washington, D.C. CBS affiliate, Peck explained that presidential pardon authority is very broad, but was not limitless. He said that the pardon authority can only reach federal crimes, not state criminal violations, could not deter impeachment and conviction, and could not absolve someone of a crime before it occurred. He noted the absence of precedent for a presidential self-pardon and disagreement among scholars, but sided with those who believe a self-pardon is antithetical to both text and practice. 

      Peck also told Politifact that the Fourteenth Amendment's Expulsion Clause provides a basis for excluding those from federal office who violated their oath to defend and protect the Constitution by encouraging, aiding, or even applauding those who mounted an insurrection in an attempt to prevent Congress from totalling the certified electoral votes. Moreover, he suggested that those who continued to perpetrate the false narrative of a stolen election after the assualt on the Capitol provided the type of "aid and comfort" and encouragement of further acts of violence and intimidation that undermine the theory of our democracy and also qualify under Section 3's terms for expulsion.

Peck Explains Insurrection Act on WUSA-9/CBS

January 11th, 2021

     As the country reels from the assault on the Capitol as Members of Congress were engaged in totalling the Electoral College votes received from the States in the presidential election, concerns continue to grow about further incidents domestic terrorism. WUSA-9, the Washington, DC CBS affiliate, had received questions from viewers about claims being made by conspiracy theorists that President Trump had invoked the Insurrection Act to seize military control of the country and even hold public tribunals to try those who would not reconsider the election results as criminals.

     The station turned to CCL's Robert S. Peck for an explanation of the Insurrection Act, which has existed in one form or another since 1807. As Peck told the station, the Insurrection Act can only be invoked unilaterally by a president, either when a state's legislature and governor were no longer functioning due to an insurrection or domestic unrest so that federal legal rights were being trampled, or when insurrection or domestic unrest prevented law enforcement or the normal processes from proceeding. To invoke the Act, a public proclamation is necessary so that the insurgents have an opportunity to disperse and return peaceably to their homes and so that other government actors might get involved. Not only is there a safeguard role for Congress and the courts during this cooling-off period, Peck said, but also an opportunity for the vice president to make use of the 25th Amendment, if the invocation of the Act is unjustified.

Peck Interviewed about Impeachment, Twenty-fifth Amendment

January 7th, 2021

     After Members of Congress and newspaper editorials across the country advocated that President Donald Trump needed to be removed from office immediately, CCL President Robert S. Peck did a number of television interviews about the meaning of impeachment with only 13 days left in the Administration, the process of the 25th Amendment, and the consequences of removal by that amendment.

     Peck explained that an impeachment process can be done quickly, if Congress had the will to do so. He also explained that ineligibility for future office does not automatically follow a conviction following impeachment. Instead, Congress has to explicitly include those terms in the impeachment and conviction.

     Peck also explained the process anticipated by the 25th Amendment, its origins, use, and how it does not have the effect of rendering the removed president permanently disabled from seeking the presidency again.

     Peck's interviews appeared on Washington, DC CBS affiliate WUSA-9 and Toronto's CTV news channel.