Patterico's Pontifications

2/14/2020

Trump Claims It’s His Right To Intervene In DOJ Criminal Cases

Filed under: General — Dana @ 9:01 am



[guest post by Dana]

No doubt Trump seriously believes that he has the right to intervene in any way that he chooses:

President Trump on Friday asserted he has “the legal right” to insert himself into the Justice Department’s handling of criminal cases one day after Attorney General William Barr said the president’s tweets were making his job more difficult.

Trump cited Barr’s comments from an ABC News interview in which the attorney general said Trump had not asked him to take certain action in a criminal case.

“This doesn’t mean that I do not have, as President, the legal right to do so, I do, but I have so far chosen not to!” Trump tweeted.

Barr pushed back:

“I think it’s time to stop the tweeting about Department of Justice criminal cases,” Barr told ABC News Chief Justice Correspondent Pierre Thomas.

When asked if he was prepared for the consequences of criticizing the president – his boss – Barr said “of course” because his job is to run the Justice Department and make decisions on “what I think is the right thing to do.”

“I’m not going to be bullied or influenced by anybody … whether it’s Congress, a newspaper editorial board, or the president,” Barr said. “I’m gonna do what I think is right. And you know … I cannot do my job here at the department with a constant background commentary that undercuts me.”

Additionally:

“Starting a legitimate investigation…that’s the work of the attorney general and the Department of Justice,” Barr said Thursday. “That’s not like, you know, like running commentary from someone on the outside about what we’re doing.”

This interaction comes on the heels of Trump criticizing the sentencing recommendation by proscutors of longtime pal Roger Stone. He referred to it as a “miscarriage of justice”. Interestingly, the Justice Department ended up overruling the recommendation of its own prosecutors.

–Dana

206 Responses to “Trump Claims It’s His Right To Intervene In DOJ Criminal Cases”

  1. Trump really should heed Barr’s advice. But we know he won’t.

    Dana (4fb37f)

  2. It is fascinating Trump feels the need to ‘win’ this publicly. It does seem to suggest more distance between Barr and Trump than Trump’s critics would imagine, so I guess it’s a little clever.

    On the other hand, who is going to stop Trump from doing whatever he wants?

    Dustin (b8d6d1)

  3. “The President has never asked me to do anything in a criminal case.” (wink, wink, nudge, nudge) A.G. Barr This doesn’t mean that I do not have, as President, the legal right to do so, I do, but I have so far chosen not to! (wink, wink, nudge, nudge)

    I’m coming around to the scenario where this whole Barr/Mr. Boob-bait exchange is just kabuki. I don’t like that, because I’d like to think well of Barr.

    Ragspierre (d9bec9)

  4. I’ll wait for someone to come along and suggest POTUS has no legal authority over the DOJ and that it’s a completely independent agency. I don’t expect it to take long.

    frosty (f27e97)

  5. Trump is correct on the law. But, as always, what is legal and what is wise are too different things.

    Bored Lawyer (998177)

  6. And, BTW, why does Barr limit this to criminal matters? The DOJ does lots of non-criminal things. What is his position on that?

    We all know, for example, that the positions the solicitor general takes at SCOTUS is directly influenced by who is in the White House. Whether Roe v. Wade should be overturned (if that ever comes up again) is certainly of greater importance than whether Roger Stone gets three years or nine.

    Bored Lawyer (998177)

  7. Also, not trying to argue any point but Trump’s tweet is from 14/Feb and Barr’s comments are from 13/Feb. The way the above is written it sounds like Barr’s comments are pushing back on the 14/Feb tweet.

    frosty (f27e97)

  8. Trump Claims It’s His Right To Intervene In DOJ Criminal Cases

    He’s correct. It’s merely a norm or tradition, since the Watergate affair.

    Under our “unwritten constitution” it just doesn’t happen. (partly because the Senate usually extracts a promise from every Attorney General nominee not to let that happen.)

    I should say it doesn’t happen openly. When presidents do interfere, as Clinton (who I am sure had plenty of influence over Janet Reno) and even Obama maybe did, (in the case of Hillary Clinton in 2016) they do it in secret and off the record. It doesn’t mean it doesn’t happen.

    Sammy Finkelman (8e96a4)

  9. Presidential non intervention is mostly confined to not making decisions on individual cases, especially criminal ones.

    Sammy Finkelman (8e96a4)

  10. If the president commented on a criminal case, either federal or not, in a manner that supported a guilty or innocent verdict, wouldn’t that give a the opposing lawyer grounds for requesting a mistrial?

    John B Boddie (286277)

  11. In some sense he’s right; he’s the head of all branches of the executive branch.

    As Will Chamberlain said the other day, though (YT: “BARR VS TRUMP? Understanding Bill Barr’s criticism of Trump’s tweets and some old school PR wizardry”), one of Trump’s worst traits is his too-frequent public criticism of his own appointed cabinet members and other staff (as well as complaining about things Trump has the power to change, as President, but instead he complains about them rather than use his power).

    Chamberlain concludes Barr is right and Trump should cut back on the constant public commentary on DOJ cases.

    Make America Ordered Again (23f793)

  12. …wouldn’t that give a the opposing lawyer grounds for requesting a mistrial?

    Under military justice, almost for certain. I’m not sure about regular criminal law.

    Ragspierre (d9bec9)

  13. One of the criticisms of Trump I see a lot, which has merit, is he’s the head of “monitoriing troubling situations,” (especially related to the free speech of his supporters, including when they get beaten up by leftists in the street or when giant tech companies censor) rather than, I dunno, as the President doing something about them.

    It’s kind of like that with most of his DOJ tweets, I suspect.

    Make America Ordered Again (23f793)

  14. If the president commented on a criminal case, either federal or not, in a manner that supported a guilty or innocent verdict, wouldn’t that give a the opposing lawyer grounds for requesting a mistrial?

    It might, but the standard for showing prejudice enough for a mistrial is very high. There are lots of high profile cases where there is intense media coverage, and lots of things are said by lots of people, and yet the jury proceeds to verdict. Hard to say that the president’s comments are necessarily more influential than someone on TV.

    And, at least to date, Trump has been more directing his comments to the DOJ and its functioning (which he believes are out to get him) than to the guilt or innocence per se of defendants.

    Bored Lawyer (998177)

  15. I agree that Trump is indeed able to offer opinions (such as “Lock her up!”) though the heart of this problem is that Trump’s own conduct and political aspirations and his election is part of the matter Stone is in trouble over.

    Trump gets the final say, because he is going to pardon Stone, and I think his political calculations are very different from ours. He does not want to portray a cool and calm leader administering fairly. He wants heads on pikes (Romney, Vindman, Kelly, Bolton, etc). He wants friends to be freed, or at least believe they will be. There’s a completely distinct enforcement mechanism in play here about helping Trump, staying silent about Trump, as we head to another election.

    But these are just traditions that if we’re honest, we know Obama didn’t really keep to either.

    Putting Trump aside, we are seeing that the framers of our constitution got Article II wrong. They got impeachment wrong (though the Senate becoming directly elected is part of the problem). We have to reform the presidency. Even if you love Trump, you have to admit you don’t want a democrat ignoring these ideals. Imagine Comey is president with all the powers Trump exercises, with democrats in the Senate laughing at any charge. Imagine the heart of the matter is our elections, and Comey’s only answering to these elections.

    It is risky to contemplate a constitutional amendment, but the presidency needs to be restrained, EOs, impeachment, etc.

    Dustin (b8d6d1)

  16. One of the criticisms of Trump I see a lot, which has merit, is he’s the head of “monitoriing troubling situations,” (especially related to the free speech of his supporters, including when they get beaten up by leftists in the street or when giant tech companies censor) rather than, I dunno, as the President doing something about them.

    Yes, he is a big talker (and tweeter) about a lot of things he then does nothing about.

    But, a booming economy, and a Commie as his main opponent, will get him re-elected.

    Bored Lawyer (998177)

  17. Breaking-
    Justice Dept. won’t charge Andrew McCabe, the former FBI official who authorized the investigation of President Trump

    The Justice Department will not bring charges against former acting FBI director Andrew McCabe for lying to investigators about a media disclosure, according to people familiar with the matter and McCabe’s legal team, ending a long-running inquiry into a top law enforcement official who authorized the bureau to investigate President Trump and soon became the commander in chief’s political punching bag.
    The department revealed the decision to McCabe’s team on Friday; it was unclear if there were other plans to make it public. The move will surely infuriate Trump, who has raged publicly and privately in recent months that McCabe and others he considers political enemies should be charged with crimes.
    Michael R. Bromwich and David Schertler, McCabe’s lawyers, said in a statement that the D.C. U.S. Attorney’s Office had called and informed them that the case “has been closed.” The call was followed by a letter from J.P. Cooney, chief of that office’s fraud section, the lawyers said. …..

    RipMurdock (82f8fa)

  18. I’m sure the President will gracefully accept their decision…..

    RipMurdock (82f8fa)

  19. It’s hard to believe that Barr has only been on the job for exactly one year.

    Over the past year, he has turned his office into that of a wartime consigliere for the president.
    He shielded the president from the Mueller report by misrepresenting its findings and delaying its release.
    He contradicted his own department’s inspector general to keep alive the Trumpworld conspiracy theory that a deep-state liberal cabal was behind the 2016 FBI investigation into the Trump campaign.
    He was allegedly involved in the Ukraine scandal, though exactly how is still murky thanks to the Senate Republicans who decided that witnesses weren’t relevant to the president’s impeachment trial.
    He recently admitted he has established a back-door channel through which Rudy Giuliani—who happens to be under federal criminal investigation—can transmit information intended to smear the president’s political rivals.
    Most recently, he personally intervened in Roger Stone’s sentencing, spiking the career prosecutors’ original recommendation in favor of a much more lenient one. All of the career prosecutors involved in the case withdrew from it in protest.
    Barr also announced this week that senior Justice Department leadership—could that mean him, by any chance?—will personally review any investigations into 2020 candidates. He’ll be a totally neutral and fair arbiter, right?

    And that doesn’t count Barr’s assigning US Attorney Durham to engage in all kinds of pet projects that Trump wants undertaken.

    Paul Montagu (ae8832)

  20. Dustin (b8d6d1) — 2/14/2020 @ 9:53 am

    Putting Trump aside, we are seeing that the framers of our constitution got Article II wrong. They got impeachment wrong (though the Senate becoming directly elected is part of the problem). We have to reform the presidency. Even if you love Trump, you have to admit you don’t want a democrat ignoring these ideals. Imagine Comey is the president with all the powers Trump exercises, with democrats in the Senate laughing at any charge. Imagine the heart of the matter is our elections, and Comey’s only answering to these elections.

    What changes would you recommend and who would enforce them? And would those people be elected or be put in place via some other method?

    frosty (f27e97)

  21. Trump, as usual, is full of it. As are his supporters. There is actually very little he can legally do in a criminal case. Besides his Article II (Eleven), there is the Bill of Rights and particularly the Fifth and Sixth Amendments, Article III (Three) which is the judicial power, Article I (One) which is the Congress’s power to regulate court procedure, the prosecutors’ rules of conduct, and many more other things. So he can go soak his mangy, orange head, that’s what he can go and do.

    nk (1d9030)

  22. Jfk appointed his brother to be AG. Nixon appointed his campaign manger. That was 180 years after the Constitution was written. Can we please stop pretending the AG is supposed to be “independent” of the President? Further, Holder said he was Obama’s “wingman”.

    Every R Administration is the same. The MSM and Democrats constantly hold the AG to a standard they never hold the D Administration to. Just stop the nonsense.

    rcocean (1a839e)

  23. Would it be fair to observe that McCabe is MORE innocent than Duh Donald…???

    Ragspierre (d9bec9)

  24. Trump is President. If he thinks there’s an injustice going on -he can say so. If Barr doesn’t like it, he can quit. Sessions decided that the whole Trump Presidency could go down the tubes, if that meant Diane Fienstein still liked him. Now Barr is getting all prissy about a tweet.

    rcocean (1a839e)

  25. So, its now made clear that you can lie to congress or the FBI and leak classified data, and its all OK, if you work for the FBI or the CIA. Or you’re a Democrat.

    But Roger Stone should spent 7 years in jail. And Flynn should go to jail. Just more reason for Trump to pardon both men. Along with Manafort.

    rcocean (1a839e)

  26. Holder said he was Obama’s “wing-man”.

    Was that OK with you? It sure was NOT OK with me.

    Did Nixon’s admin. suck their teeth and look away?

    Ragspierre (d9bec9)

  27. “Career civil servants aren’t some aristocratic class entitled to immunity from supervision. They are employees. The danger isn’t political authority, but rather an unelected mandarin class that believes itself exempt from democratic accountability.”

    The Trials of Bill Barr
    Bureaucrats bristle as the attorney general delivers on his pledge of accountability.

    https://www.wsj.com/articles/the-trials-of-bill-barr-11581637977?redirect=amp#click=https://t.co/kiKZjZxuFJ
    _

    harkin (b64479)

  28. McCabe was put into the FBI deputy position by Comey. He’s a Comey man. That’s why he was investigating Trump in May 2017 and was asking Rosenstein if he’d “wear a wire” when talking to Trump. Looking back we can see that Trump was dangerously naive about the ethics and politics of both Comey and McCabe. He should have fired both in Jan 2017.

    That his lies to the FBI IG and his leaking hasn’t gotten him a prison sentence but a CNN TV spot, says it all.

    rcocean (1a839e)

  29. What Trump should do is find out if there is a memo as to why they are not prosecuting McCabe and the release it publicly. If there is no memo, order one written and release it. And have them specifically address how McCabe is different from Flynn, who from what I can tell, did less and is being prosecuted.

    But what Trump will do is release hysterical Tweets and then do nothing.

    Bored Lawyer (998177)

  30. Trump is President. If he thinks there’s an injustice going on -he can say so. If Barr doesn’t like it, he can quit. Sessions decided that the whole Trump Presidency could go down the tubes, if that meant Diane Fienstein still liked him. Now Barr is getting all prissy about a tweet.

    rcocean (1a839e) — 2/14/2020 @ 10:41 am

    Think about this for a moment. Sessions was a huge Trump supporter. Why did he recuse? Why did he attempt to demonstrate an impartial pursuit of justice? Was it really to please the people Sessions had been frustrated with for decades? Or is there some greater purpose to law enforcement pursuing fair means rather than hoped for ends?

    Barr is getting all prissy

    If it always smells like crap, check under your shoe. If Trump keeps having people ‘get all prissy with stupid ethics’ maybe he’s unethical.

    A lot of people get more concerned about Trump once they’ve worked more closely with him.

    But take Trump out of the equation.

    Our nation vested the whole executive branch in a single person who is functionally above the law now. It took hundreds of years to get here, and it’s surely not just one president’s fault. The problem is bigger than that.

    Would the nation be better if signing statements and executive orders interpreting laws were eliminated? Is there a functional middle ground where the executive can still use judgment without taking over as the legislature? In our polarized times where both parties are spending us into existential crisis, and both sides seem to have Lois Lerner or Rudy problems, is there any way to solve that if the person they serve can issue pardons?

    I’ve offered my idea about alternatives a few times. I think we should have term limits and far, far more representatives, none of whom actually vote in DC. The impeachment process should be more similar to a change in prime minister (more political). Perhaps the leadership of law enforcement and ethics scrutiny should be independent. That’s a major change, but think about the problem with Valerie and Lois instead of Rudy and Barr if it helps to see why this is worth thinking about.

    As a practical matter, any reform, any real improvement, feels like pure fantasy.

    Dustin (b8d6d1)

  31. It seems the 5 DoJ lawyers who resigned were all Democrats and trump haters. One wrote for the Huffington Post! Further, they mislead Barr about the Sentencing and blind-sided him by asking for 7-9 years. If they hadn’t resigned, they should have been fired.

    The WSJ phrase about “Aristocrats” is correct. These DoJ lawyers think they ARE the law and their lawyer “principles” supersede everything else.

    rcocean (1a839e)

  32. Having a little trouble, Harkin, sorting out who is the “mandrin class” among these players, and who’s supposed the outsider new sheriff in town.

    Ragspierre (d9bec9)

  33. I remember all those hopes that Trump would sweep into office, shut down a bunch of agencies, cut tons of fat, maybe even fire the whole damn mess. Instead the deficit doubled and he’s tweeting about his own administration all day.

    Dustin (b8d6d1)

  34. It seems the 5 DoJ lawyers who resigned were all Democrats and trump haters.

    Is that as well documented as your usual blather?

    Ragspierre (d9bec9)

  35. Here is another new revelation:

    AG Barr Appointed Outside Prosecutor to Review Case against Michael Flynn

    https://www.nationalreview.com/news/ag-barr-appointed-outside-prosecutor-to-review-case-against-michael-flynn/

    So Barr is trying to do some kind of cleanup.

    Would not surprise me if he has the same kind of review for the McCabe case.

    As we used to say, stay tuned next week. Same Bat Time, Same Bat Channel!

    (How many here are old enough to remember that one?)

    Bored Lawyer (998177)

  36. Think about this for a moment. Sessions was a huge Trump supporter. Why did he recuse? Why did he attempt to demonstrate an impartial pursuit of justice? Was it really to please the people Sessions had been frustrated with for decades? Or is there some greater purpose to law enforcement pursuing fair means rather than hoped for ends?

    I have no idea what you’re talking about. There was no reason for Sessions to recuse himself. And once he saw that Rosenstein was running off the rails and giving Mueller a Blank check, he should have Unrecused himself and intervened – since he was such a “Strong Trump Supporter”. So why didn’t he?

    Well, first of all why did Sessions recommend Rosenstein for deputy AG, when Rosenstein so beloved by the D’s ( look at his confirmation vote)?

    When Rosenstein announced Mueller as special counsel – without telling Sessions first – what did Sessions do? He offered Trump his resignation. that’s it. He wanted to go back to the Senate and leave Trump hanging. He didn’t want to fight. He didn’t want to protect Trump. He didn’t want to take the heat. He just wanted to stay out of Mueller-Russian and if he couldn’t – he wanted to leave. That’s consistent with every other thing he did as AG. He never was a fighter.

    rcocean (1a839e)

  37. On the other hand, who is going to stop Trump from doing whatever he wants?

    In the other thread, Bored Lawyer said that Trump is at the helm. He is not. He is only on the bridge. If the sailor at the helm and the officer of the deck don’t do what he says, all he can do is play with his two little balls and mutter “Disloyal officers!”

    nk (1d9030)

  38. It seems the 5 DoJ lawyers who resigned were all Democrats and trump haters. One wrote for the Huffington Post! Further, they mislead Barr about the Sentencing and blind-sided him by asking for 7-9 years. If they hadn’t resigned, they should have been fired.

    The WSJ phrase about “Aristocrats” is correct. These DoJ lawyers think they ARE the law and their lawyer “principles” supersede everything else.

    rcocean (1a839e) — 2/14/2020 @ 10:53 am

    Do you think that prosecutors shouldn’t want politicians interfering in their work? I imagine this is across the board. It just seems wrong.

    Is Barr a democrat now too? Unfortunately, one of the most common Trump memes is that everyone who criticizes him is a democrat. It’s that “but I repeat myself” meme about the deep state, MSM, nevertrumpers, etc. Even the last GOP presidential candidate is not in the GOP. Sessions, Bolton, etc.

    This stuff is usually justified on thin stuff. Especially when you consider Trump was actually a huge democrat and pretty recently endorsed Hillary for president.

    It’s like information that hurts Trump is not real, and information that helps Trump cannot be questioned, which makes it hard to have a productive conversation.

    Dustin (b8d6d1)

  39. Presidents set policy but they can’t intervene in specific cases:

    The norms and longstanding practices protecting the Justice Department’s independence reflect constitutional principles that limit the situations in which the White House may interfere in law enforcement matters involving specific parties. In short, it is constitutionally appropriate for the President to set generally-applicable policies and priorities in order to enforce the laws of Congress. But with the exception of certain narrow types of circumstances, however, it will likely conflict with the Constitution for the White House to intervene in the Justice Department’s handling of an enforcement matter involving specific parties. And if the White House intervention is based on personal or corrupted interests, such interventions will always be unconstitutional.

    The constitutional underpinnings of the principle of non-interference with specific-party law enforcement matters flow from Article II of the Constitution and various provisions of the Bill of Rights.

    While Article II places the president at the head of the executive Branch and vests in him the executive power, it does not give him the “absolute right” to intervene in how the law is enforced against specific parties. Even the King did not wield the type of executive power the president contemplates. Indeed, Article II places concrete limitations on how the president may oversee the Justice Department.

    First, the Take Care Clause requires that the president “shall take Care that the Laws be faithfully executed.” This means that the president must operate within and enforce the laws as Congress enacted them—not subvert or rewrite them. As Justice Frankfurter explained in a concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, “The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.” Of course, the president may shape priorities and direct generally applicable policy within the confines of those constraints.

    Second, the president must take care that the law is executed faithfully, in keeping with his Oath of Office to “preserve, protect, and defend the Constitution.” He may not act for corrupt or self-interested reasons inconsistent with his oath. And third, as Professor Gillian Metzger has observed, the passive phrasing of the Take Care Clause is unique and significant. Nowhere else does the Constitution employ a similar construction to describe the duties of a constitutional officeholder. This phrasing suggests an approach in which the president oversees the execution of the laws, but does not execute them himself.

    Provisions of the Bill of Rights further constrain political interference in law enforcement matters involving specific parties. The Fifth Amendment’s Due Process Clause requires the government to follow fair and neutral procedures before denying people important interests. It prohibits public pronouncements of guilt; prosecutions by interested officials; threats of vindictive prosecution; and other forms of prosecutorial misconduct. The Fifth Amendment also prohibits the federal government from arbitrarily denying to any person the equal protection of the laws, which precludes the White House from intervening in single party matters to order the prosecution of disfavored persons or groups, or the non-enforcement of the law against favored ones. And the First Amendment prohibits retaliation based on speech or political activity. Therefore, any intervention by the White House in a specific-party matter aimed at retaliating against political participation or discouraging First Amendment-protected speech or association would violate the First Amendment.

    By the way, this was written in March 2018 after Trump claimed that he has the “absolute right to do what I want to do with the Justice Department.” He believes this and has been saying it for years. He isn’t willing to learn about the Constitution.

    DRJ (15874d)

  40. 35. Bored Lawyer (998177) — 2/14/2020 @ 10:57 am

    As we used to say, stay tuned next week. Same Bat Time, Same Bat Channel!

    (How many here are old enough to remember that one?)

    The sow was the next day, Every episode was two separate half hours, one on Wednesday and the conclusion on Thursday, It was the first or nearly the first second season show that stated in January (1967)

    But I am not sure about this – did it beggin in January?

    Sammy Finkelman (8e96a4)

  41. I have no idea what you’re talking about. There was no reason for Sessions to recuse himself.

    Obviously Sessions thought there was a reason, since he did recuse himself at tremendous personal cost.

    he should have Unrecused himself and intervened

    It’s hard to do that if your objective is the reputation and integrity of your department.

    He never was a fighter.

    I agree. He was not there to fight for a political result or for Trump’s political agenda. I don’t think the leader of the DOJ should be. To some extent, it’s impossible to avoid, but that extent should be minimized. He should be putting criminals away and letting the innocent have justice, not trying to be a fighter for an agenda.

    The real common ground between us is probably how extensive and entrenched the bureaucracy is. The Valerie Plames who will thwart their administration. I think reform should address this without hoping senior leaders tilt scales.

    Perhaps federal jobs should have some kind of term limit for all but a few experts, and those experts should have special scrutiny on political conduct. Or, much better yet, send almost all of these functions to the state level.

    Dustin (b8d6d1)

  42. By the way, this was written in March 2018 after Trump claimed that he has the “absolute right to do what I want to do with the Justice Department.” He believes this and has been saying it for years. He isn’t willing to learn about the Constitution.

    DRJ (15874d) — 2/14/2020 @ 11:04 am

    It is amazing that people consider it conservative to support claims on absolute power in federal government.

    Dustin (b8d6d1)

  43. Sessions’ recusal: explained.

    DRJ (15874d)

  44. 39. This argues it is not “appropriate” but seems to be base that on the reason for intervention being corrupt or personal. Only people below him are supposed to exercise prosecutorial discretion. Or maybe nobody?

    Sammy Finkelman (8e96a4)

  45. 42.

    He isn’t willing to learn about the Constitution.

    This is in the constitution the way a lot of things are in the British constitution. It’s only norms and tradition.

    Sammy Finkelman (8e96a4)

  46. Dustin (b8d6d1) — 2/14/2020 @ 10:52 am

    Perhaps the leadership of law enforcement and ethics scrutiny should be independent. That’s a major change, but think about the problem with Valerie and Lois instead of Rudy and Barr if it helps to see why this is worth thinking about.

    We’re talking about the police power of the federal government so what sort of independence are we talking about? Where do these independent people come from? Who would pick them? Would they also be term-limited? If they became untrustworthy could they be removed?

    frosty (f27e97)

  47. 10. John B Boddie (286277) — 2/14/2020 @ 9:44 am

    If the president commented on a criminal case, either federal or not, in a manner that supported a guilty or innocent verdict, wouldn’t that give a the opposing lawyer grounds for requesting a mistrial?

    Only on grounds that you could not get an impartial jury. But judges don;t ant to make it impossible to try cases.

    Nixon commented on Manson and was criticized so he avoided that later.

    Sammy Finkelman (8e96a4)

  48. 46. frosty (f27e97) — 2/14/2020 @ 11:15 am

    Where do these independent people come from? Who would pick them? Would they also be term-limited? If they became untrustworthy could they be removed?

    Exactly the question. This just pushes the problem around.

    One argument is that power is divided, and another is that the standards are vague, and that that’s good.

    Sammy Finkelman (8e96a4)

  49. This is in the constitution the way a lot of things are in the British constitution. It’s only norms and tradition.

    Sammy Finkelman (8e96a4) — 2/14/2020 @ 11:13 am

    But that’s functionally very important. There are always little middle ground issues that need to be sorted out. That’s why trust and fairness are supremely important (or used to be).

    As DRJ’s link helpfully notes, Manafort was convicted. Sessions recused himself from criminal investigation where a crime occurred and he had a relationship. Granted, these rules aren’t in the constitution. As a Texan, I don’t like an overly long constitution that attempts to handle all these problems. I prefer the notion of leaders who are restrained both in their judgment and in their literal power.

    Dustin (b8d6d1)


  50. Michael Avenatti
    @MichaelAvenatti
    ·
    William Barr, Trump’s Sword and Shield
    __ _

    Stephen Brown
    @PPVSRB
    Michael Avenatti guilty on all counts in Nike extortion trial. He stared straight ahead and showed no reaction as verdict was read.
    __ _

    Mike Schoppmann
    @warmbenchco
    ·
    how does this impact his 2020 presidential chances?

    _

    harkin (b64479)

  51. But you don’t want presidential elections to be about how is justice is going to be administered.

    Sammy Finkelman (8e96a4)

  52. Like Avenatti could get an unbiased jury in Manhattan.

    nk (1d9030)

  53. Exactly the question. This just pushes the problem around.

    Sammy Finkelman (8e96a4) — 2/14/2020 @ 11:19 am

    I don’t think this is the question at all. The question is more fundemental. How much power do we want our federal government to have? Right now, Trump says his power is quote “absolute.”

    Grand inquisitors who refuse to engage in a back and forth can endlessly say something isn’t perfect, but the real problem is what corruption has exposed. When we agree that we need to work out an independent law enforcement function that does not serve a political campaign, we can work through the details imperfectly, but with a common sense purpose. And as always, reduce its power as much as we can, since this should be a literal federal government. Not an absolute power one.

    Dustin (b8d6d1)

  54. how does this impact his 2020 presidential chances?

    Disqualification to hold public office because of a criminal conviction is a power given to the states by the Fourteenth Amendment and varies from state to state.

    nk (1d9030)

  55. I’m sure the Founders foresaw this: throngs of potential jurists, deriving their livelihoods and sustenance from ever expanding powers of a federal behemoth, sit in judgement of those that would protect the power of the behemoth (McCabe, Clinesmith) against those that would reign it in (Trump and friends).

    And, self-anointed “constitutional conservatives” cheer it on.

    Munroe (dd6b64)

  56. This is all so stupid of Trump. He has a plenary power of clemency and pardon. So what if they sentence Stone to death by disembowelment? Trump can change it to a hour of house arrest if he wants.

    Maybe he thought this would be less controversial.

    Kevin M (ab1c11)

  57. Dustin (b8d6d1) — 2/14/2020 @ 11:09 am

    It is amazing that people consider it conservative to support claims on absolute power in federal government.

    That would be something if that is what’s being claimed.

    DRJ (15874d) — 2/14/2020 @ 11:04 am

    By the way, this was written in March 2018 after Trump claimed that he has the “absolute right to do what I want to do with the Justice Department.”

    The context of the quote I think you’re referencing is

    “I have absolute right to do what I want to do with the Justice Department,” he said, echoing claims by his supporters that as president he has the power to open or end an investigation.

    Pretending that this is a claim to some sort of “absolute power in [the] federal government” is being a little disingenuous.

    frosty (f27e97)

  58. We’re talking about the police power of the federal government so what sort of independence are we talking about? Where do these independent people come from? Who would pick them

    California and many other states elect their AG. It really doesn’t seem to make it less political. In the federal system there is the Senate as the gate-keeper, and that should serve to keep crazy people out of office better than happens in CA.

    Kevin M (ab1c11)

  59. Dustin (b8d6d1) — 2/14/2020 @ 11:23 am

    When we agree that we need to work out an independent law enforcement function that does not serve a political campaign, we can work through the details imperfectly, but with a common-sense purpose.

    How do we create an independent law enforcement function? Who picks them? Who decides what power they will have? How are all of those questions not political?

    Trump says his power is quote “absolute.”

    You are misinterpreting these comments. The quotes I’ve seen can more correctly be interpreted as “I absolutely have the authority to do the specific X we’re talking about” instead of “I have the absolute authority to do any X”.

    frosty (f27e97)

  60. This is all so stupid of Trump. He has a plenary power of clemency and pardon. So what if they sentence Stone to death by disembowelment? Trump can change it to a hour of house arrest if he wants.

    Maybe he thought this would be less controversial.

    Kevin M (ab1c11) — 2/14/2020 @ 11:43 am

    This is a good observation. But for whatever reason, the results are less important than the claim of “absolute” power. I worry that this bluster signals efforts to maintain cooperation and loyalty as we approach the time of October surprises.

    Trump may have revealed how broken the impeachment process is, but he won’t be the only beneficiary. Bernie supported by Antifa or whoever, unaccountable and absolute? I rather suspect the democrats will give us something more subtle, but why not come up with a system that protects us from tyrants?

    Dustin (b8d6d1)

  61. California and many other states elect their AG. It really doesn’t seem to make it less political. In the federal system there is the Senate as the gate-keeper, and that should serve to keep crazy people out of office better than happens in CA.

    Kevin M (ab1c11) — 2/14/2020 @ 11:48 am

    We won’t ever have an apolitical system of robotic leaders, but should the AG work for a president who has proven himself above the law, insisting he has absolute power with several investigations where his own allies were convicted of crimes? I think they can easily be separated organizationally.

    In Texas, the Lt. Gov, Governor, and AG all work together and generally follow similar political trends, but are distinct entities. And most free countries do not bother with the president concept at all. Perhaps a prime minister would avoid some of these problems (and bring some, I am sure). Just idle thoughts.

    Dustin (b8d6d1)

  62. Trump did not say he has the absolute power to do a specific thing, and that wouldn’t make sense, as “absolute power” means power without qualification or specific conditions that would diminish Trump’s power. He said “absolute power to do what I want to do”. Trump also said “I have an Article 2, where I have the right to do whatever I want as president.”

    It is sad that anyone would defend this or lie that this never happened, like they are licking Stalin’s boots.

    Dustin (b8d6d1)

  63. Dustin (b8d6d1) — 2/14/2020 @ 12:03 pm

    In Texas, the Lt. Gov, Governor, and AG all work together and generally follow similar political trends, but are distinct entities.

    This sounds like they would be elected.

    frosty (f27e97)

  64. Breaking: Justice Department drops McCabe criminal investigation

    The Department of Justice is dropping its criminal investigation of former FBI Deputy Director Andrew McCabe without bringing charges, it announced on Friday.

    McCabe’s attorneys received a phone call and a letter from the US Attorney’s Office in DC on Friday announcing the declination.

    “We write to inform you that, after careful consideration, the Government has decided not to pursue criminal charges against your client, Andrew G. McCabe, arising from the referral” made by the Inspector General’s office to investigate his behavior, the DC US Attorney’s Office wrote. McCabe’s attorneys released the letter on Friday. “Based on the totality of the circumstances and all of the information known to the Government at this time, we consider the matter closed.”

    Dave (1bb933)

  65. Dustin,

    The CA AG has been a leftist shill for decades. Kamala Harris, for example, who single-handedly outlawed all new semi-auto pistols by declaring they must embody an impossible feature (microstamping) in order to be declared “safe”.

    Kevin M (ab1c11)

  66. Good. Let’s look at what Trump said in that NY Times’ interview in December 2017:

    ‘I have absolute right to do what I want to do with the Justice Department,’ he said, echoing claims by his supporters that as president he has the power to open or end an investigation. ‘But for purposes of hopefully thinking I’m going to be treated fairly, I’ve stayed uninvolved with this particular matter.’

    The “particular matter” was the Mueller investigation.

    Can Trump divert DOJ resources to investigate matters? Yes, and I wish Trump would do that regarding “Lock Her Up! Hillary” and make the findings public, since Comey already identified it as a matter of “intense public interest.” Can Trump use his authority to help himself or hurt his opponents? No, which is why his power is not absolute no matter how often he says it.

    DRJ (15874d)

  67. Trump also said “I have an Article 2, where I have the right to do whatever I want as president.”

    Trump has never read Article II.

    He has one absolute power here: the pardon power. It’s one of the few plenary powers in the Constitution. But even that is limited to federal crimes. If NY state convicted someone of tax evasion, he hasn’t a power in the world.

    Kevin M (ab1c11)

  68. Let me add that Trump can’t use the DOJ as his personal law firm, even if something happens that is unfair. There is not an Unfairness Exception for Presidential power in the Constitution or Bill of Rights.

    DRJ (15874d)

  69. Breaking: Michael Avenatti has been found guilty on all counts in Nike extortion trial

    “A lawyer with his briefcase can steal more than a hundred men with guns.”
    – Vito Corleone

    Dave (1bb933)

  70. Interesting, Dave. Thanks.

    DRJ (15874d)

  71. Dustin (b8d6d1) — 2/14/2020 @ 12:17 pm

    I don’t recall seeing a quote like that when it wasn’t in the context of whether he could close the Mueller investigation or some other specific thing. I know it’s fun to play this game but if he really believed he had absolute authority to do whatever he wants why isn’t he acting on it?

    Do you know you’ve got a tell? I’m guessing you aren’t aware of it but when you start resorting to insults and accusations it is the cognitive dissonance kicking in.

    frosty (f27e97)

  72. Dave (1bb933) — 2/14/2020 @ 12:19 pm

    It must be upsetting that someone who lied to investigators under oath is scot free.

    The principled Trump critics here need to temper their outrage. Tone it down please.

    Munroe (dd6b64)

  73. Quoth Barr
    “I’m not going to be bullied or influenced by anybody … whether it’s Congress, a newspaper editorial board, or the president,” Barr said. “I’m gonna do what I think is right. And you know … I cannot do my job here at the department with a constant background commentary that undercuts me.”

    Additionally:

    “Starting a legitimate investigation…that’s the work of the attorney general and the Department of Justice,” Barr said Thursday. “That’s not like, you know, like running commentary from someone on the outside about what we’re doing.”

    That’s actually not Trump specific. It might (also) be referring to the constant drumroll of blogland punditry that sees him as nothing more than Trump’s lackey.

    Kishnevi (a6653c)

  74. As far as the DoJ, Trump can fire the AG. He can fire the assistant AG. He can fire any political appointee at will.

    If a person is, by statute, only removable by the AG, Trump cannot fire him (duh). He can fire an AG who refuses, of course, and the acting AG after that point, until he gets to someone who will do his will (see Saturday Night Massacre).

    I very much doubt, under the Civil Service Act, whether he can directly affect a regular DoJ employee. He can drill down as was done with Cox, but that’s an even cruder club than I’d think he’d reach for.

    So, no, he cannot order an investigation stopped, or started. He can recommend, suggest or cajole an AG into issuing the order, but other than doing what Nixon did, he has no power to leapfrog the chain of command.

    Kevin M (ab1c11)

  75. McCabe was put into the FBI deputy position by Comey. He’s a Comey man. That’s why he was investigating Trump in May 2017 and was asking Rosenstein if he’d “wear a wire” when talking to Trump. Looking back we can see that Trump was dangerously naive about the ethics and politics of both Comey and McCabe. He should have fired both in Jan 2017.

    That his lies to the FBI IG and his leaking hasn’t gotten him a prison sentence but a CNN TV spot, says it all.

    To me it says that they didn’t rise to the level of a criminal offense. Or maybe Trump and Barr are part of the DeEp sTAte.

    Time123 (daab2f)

  76. Dave (1bb933) — 2/14/2020 @ 12:19 pm

    Great example. I still imagine the message has been delivered. Imagine Trump is engaged in some new kind of misconduct today. Someone who sees it wants to blow the whistle. They know that they will be prosecuted, named, smeared, their families harassed, and even if Trump is absolutely guilty, there is no way to do anything about it effectively. I bet a lot of people would say the lack of benefit is outweighed by the harm to their families.

    “when you’re a star they let you do it”

    Dustin (b8d6d1)

  77. Kishnevi (a6653c) — 2/14/2020 @ 12:29 pm

    There is nothing that prevents a toadying AG from asking the President what he should do. See the buck-passing that happened in the Clinton email case.

    Kevin M (ab1c11)

  78. Dave (1bb933) — 2/14/2020 @ 12:19 pm

    It must be upsetting that someone who lied to investigators under oath is scot free.

    The principled Trump critics here need to temper their outrage. Tone it down please.

    Munroe (dd6b64) — 2/14/2020 @ 12:28 pm

    Maybe they didn’t feel they could prove he lied. Or maybe they did let him go free anyway. What’s your explanation for the Trump DOJ let McCabe off without charging?

    Time123 (daab2f)

  79. To me it says that they didn’t rise to the level of a criminal offense. Or maybe Trump and Barr are part of the DeEp sTAte.

    Time123 (daab2f) — 2/14/2020 @ 12:32 pm

    This is the other side of the problem with the AG serving a president who says he has absolute article II power.

    Even the apparently crooked ones… they have a lot of cover by pointing to the disreputable process. If Trump really were a target of the deep state, he has no real recourse because he has damaged the independence of the DOJ to send the message he needed to send.

    Of course the democrats are not saints and are well entrenched in the bureaucracy. It’s not really amusing, though I did chuckle, imagining Sessions, then Barr thinking the DOJ could do a much better job if he were independent.

    And why did Comey and Mccabe hurt Clinton’s hopes too? What if they are just imperfect people rather than deep state agents? If there is some grand conspiracy, I think it has more to do with Russia concealing the extent of its influence over both political parties.

    Dustin (b8d6d1)

  80. Presidents can direct government resources in the manner they choose provided it is consistent with the Constitution, Bill of Rights, and applicable statutes. It is up to the government agencies and departments to follow legal and procedural rules to implement (execute) the Presidential policies and directives. Trump doesn’t get to short-circuit that process, especially for personal reasons like protecting friends or allies.

    Remember how wrong it was for Obama’s DOJ to intervene in the Philadelphia’s a Black Panther verdict or for Obama to criticize the arrest of Henry Louis Gates? This is what Trump is doing.

    DRJ (15874d)

  81. The CA AG has been a leftist shill for decades. Kamala Harris, for example, who single-handedly outlawed all new semi-auto pistols by declaring they must embody an impossible feature (microstamping) in order to be declared “safe”.

    Kevin M (ab1c11) — 2/14/2020 @ 12:19 pm

    Right. And in Texas these offices are quite political too. My point isn’t that I envision a robotic or perfectly objective agency. I don’t even think that’s necessarily good. I just think there’s ample reason in our modern age of intense and bitter partisanship to create independent organizations. The AG need not work for the president at all. Maybe because the president need not be elected. Maybe because the AG is himself elected. There are a lot of ways to skin that cat.

    Dustin (b8d6d1)

  82. What’s your explanation for the Trump DOJ let McCabe off without charging?

    The DoJ is usually a bunch of lawyers that have been there for a while. Each President begins a process to hire more to his liking, but it takes time. Many of the people working there now were hired by Obama, others by Trump, and some now senior people by Clinton. Add to this the leftist tendency to discriminate against conservatives (and the conservative tendency to play by the rules), and you get an institutional drift to the left.

    I doubt any federal agency is actually “Trump’s”.

    Kevin M (ab1c11)

  83. “What’s your explanation for the Trump DOJ let McCabe off without charging?”
    Time123 (daab2f) — 2/14/2020 @ 12:33 pm

    I’ll answer with a question for you. See if you can answer.

    What chance does McCabe have in front of a DC jury?

    And, there’s a part deux:

    Why do you think the Stevens prosecutors got off?

    Munroe (dd6b64)

  84. If NY state convicted someone of tax evasion, he hasn’t a power in the world.

    He could send in Eddie Gallagher!

    Make America Ordered Again (295e7a)

  85. A simple truth that I get a lot of hate for stating is that NOBODY should EVER use the term “criminal justice” referring to our (or any) system.

    On a good day, we have a “criminal legal system”. On a bad day it can be simple tyranny. It should never be confused with a promise of “justice”. You can’t expect that in this old world.

    Ragspierre (d9bec9)

  86. Why do you think the Stevens prosecutors got off?

    Because in the history of time, no federal prosecutor has been sanctioned?

    Kevin M (ab1c11)

  87. Time123 (daab2f) — 2/14/2020 @ 12:33 pm

    What’s your explanation for the Trump DOJ let McCabe off without charging?

    That it’s not Trump’s DOJ to do with as he sees fit. The fact that a tweet about sentencing in a single case triggered a undermines the argument that it’s the Trump DOJ.

    I think there’s a comment a couple up from this one that explains how Trump can’t start or stop any investigation he wants.

    frosty (f27e97)

  88. Frosty, you wrote

    How do we create an independent law enforcement function? Who picks them? Who decides what power they will have? How are all of those questions not political?

    My answer is this.
    You establish rules that they follow. You give the accused rights. You establish guidelines and consequences when those rules are not followed. You have people inspect to make sure that the rules are applied in a consistent manner. You makes the results of those inspections public. When you don’t like the results of the process you change those rules and procedures so that they apply equally to everyone.

    It’s not a perfect of complete answer but it’s the best I have.

    Allowing the executive branch, or elected LEO, to pick and choose how / when to apply the laws based on political or policy preference is not a just system. Our systems need more justice not less.

    One of the things that I don’t like about the current administration is how little systemic improvements they’ve made.

    -3 years in and nothing improved on FISA.
    -No changes to pre-dawn arrests or how those are authorized.
    -No changes to the requirements to open an investigation.
    -No changes to what constitutes an obstructive statement or a false statement.

    just a lot of noise when it impacts a member of their team.

    Time123 (a7a01b)

  89. 85: Shorter: “Law” and “justice” are not synonyms, and are often unrelated.

    Kevin M (ab1c11)

  90. #88:

    Also, no curtailing of seizure laws.

    Kevin M (ab1c11)

  91. Frosty, Just saw this one.

    That it’s not Trump’s DOJ to do with as he sees fit. The fact that a tweet about sentencing in a single case triggered a undermines the argument that it’s the Trump DOJ.

    I think there’s a comment a couple up from this one that explains how Trump can’t start or stop any investigation he wants.

    My point was that it’s unlikely that the current leadership of the DOJ chose to go easy on McCabe for political reasons, or would have been out of the loop on this particular decision. Not that Trump made this decision personally.

    But it is 100% Trump’s DOJ. The one before it was Obama’s DOJ. Before that it was Bush’s etc. They’re the president. They appoint the AG and other top leaders. They set priorities. They own the results even when they’re not personally involved in the specific decision making.

    There’s no evidence that Obama was personally involved in F&F, but it was his DOJ that totally Fu&*ed the goat on it.

    Time123 (a7a01b)

  92. “What’s your explanation for the Trump DOJ let McCabe off without charging?”
    Time123 (daab2f) — 2/14/2020 @ 12:33 pm

    I’ll answer with a question for you. See if you can answer.

    What chance does McCabe have in front of a DC jury?

    I think that depends on the evidence against him. I don’t think DC Jury = Democrat is acquitted.

    And, there’s a part deux:

    Why do you think the Stevens prosecutors got off?

    Munroe (dd6b64) — 2/14/2020 @ 12:39 pm

    No idea. I didn’t follow the story and I don’t have time or interest to do that research now.

    I answered your questions. What’s your explanation for the Trump DOJ leting McCabe off without charging?

    Time123 (a7a01b)

  93. In Texas we also elect our state judiciary.

    It isn’t a “perfect” system, I know too well. But where the people have the ability to determine who the people are who bring and adjudicate criminal charges it does have the virtue of being “democratic”. It does put the verity in the saying “In a democracy you get what you deserve…or at least what the majority voted for”. The people may have chosen unwisely, but they have the right even to screw up AND to potentially learn from their mistakes.

    Ragspierre (d9bec9)

  94. When you don’t like the results of the process you change those rules and procedures so that they apply equally to everyone.

    Time123 (a7a01b) — 2/14/2020 @ 12:42 pm

    That makes more sense than basing these things on who is in power and if they are on my side. We have to imagine the other side abusing power, which they generally will.

    The US government is far too large, powerful, and expansive to be executed by a single person. Why should the same person blowing up Iranian generals be expressing authority over a witness tampering case or an election issue?

    The one general principle: it should matter a whole lot less in my day to day life who the president is. It should not be worth a billion gillion dollars. Administrative law and EOs should be sharply limited, and perhaps all laws at the federal level should sunset as the whole project is a total mess.

    Let me offer one more idea: why not give an independent office pardoning power, that office being more of a court-like panel, and remove that power from the president?

    Dustin (b8d6d1)

  95. I think Trump can “start or stop any investigation he wants,” frosty, but he has to do it for a proper reason. It can’t be a corrupt or personal reason. Stopping the Mueller investigation because it hurt him would have been both.

    DRJ (15874d)

  96. A93 you may change your mind when the left thru the hispanic vote and white liberals moving to texas start voting for judges. Instead of running on how many minorities they have sentenced to death democrat judges will run on how many republican/conservatives they have brought to”justice!”

    asset (dbe661)

  97. “I answered your questions. What’s your explanation for the Trump DOJ leting McCabe off without charging?”
    Time123 (a7a01b) — 2/14/2020 @ 12:49 pm

    Cute. Just so you won’t accuse me of ignoring your question:

    1. Prosecutors and professional courtesy.
    2. Even without #1, DC jury makes it a waste of time and resources.
    3. Juxtaposed against the Flynn and Stone developments makes a not so subtle point.

    If you’re interested, I would research the Stevens debacle and aftermath. But, maybe you aren’t.

    Munroe (dd6b64)

  98. It isn’t a “perfect” system, I know too well. But where the people have the ability to determine who the people are who bring and adjudicate criminal charges it does have the virtue of being “democratic”.

    And they do function independently of the governor, AG, etc. I think elected judges is too democratic but the idea of separation seems to work just fine.

    Dustin (b8d6d1)

  99. You really think that the DOJ attorneys that report to Barr are going easy on McCabe out of professional courtesy? After 2 years of sessions and one year of Barr? That’s just silly.

    Time123 (a7a01b)

  100. It must be upsetting that someone who lied to investigators under oath is scot free.

    Especially when what he allegedly “lied” about involved releasing information helpful to Donald Trump’s election campaign.

    Yes, very upsetting. We need more competent deep-state conspirators who don’t let quaint notions like political neutrality interfere with their service to the resistance, as McCabe did.

    BTW, he wasn’t under oath.

    Dave (1bb933)

  101. #14

    If the president commented on a criminal case, either federal or not, in a manner that supported a guilty or innocent verdict, wouldn’t that give a the opposing lawyer grounds for requesting a mistrial?

    It might, but the standard for showing prejudice enough for a mistrial is very high. There are lots of high profile cases where there is intense media coverage, and lots of things are said by lots of people, and yet the jury proceeds to verdict. Hard to say that the president’s comments are necessarily more influential than someone on TV.

    And, at least to date, Trump has been more directing his comments to the DOJ and its functioning (which he believes are out to get him) than to the guilt or innocence per se of defendants.

    Bored Lawyer (998177) — 2/14/2020 @ 9:53 am

    Trump tweeting on active court cases has backfired on him in the past.

    Just look at the Bergdahl case… Trump obnoxiously tweets about this case, such that I’m sure that the military judge had to simply slap Bergdahl’s wrist just to show that he’s independent of Trump.

    It’s one of Trump’s biggest flaws… knowing when to keep his trap shut.

    whembly (c30c83)

  102. It must be upsetting that someone who lied to investigators under oath is scot free.

    The principled Trump critics here need to temper their outrage. Tone it down please.

    You must not even know a LEO, huh?

    Ragspierre (d9bec9)

  103. A93 you may change your mind when the left thru the hispanic vote and white liberals moving to texas start voting for judges. Instead of running on how many minorities they have sentenced to death democrat judges will run on how many republican/conservatives they have brought to”justice!”

    asset (dbe661) — 2/14/2020 @ 12:55 pm

    I hope Texas maintains its tradition of skepticism of government. We’ve always been heavily influenced by Mexico. I don’t really think Texas is so hell-bent on executions either, nor should it be.

    But I am seeing steady changes around me, politically. Our governor is conservative and quite popular. He’s learned a lot watching how Trump engages through social media, and in my opinion it makes his administration more transparent and popular. Like imagine if Trump were tweeting all the time, yet professionally and soberly, with a clear public good as his goal. One of Trump’s real successes is he finally showed republicans they can indeed break through the media and communicate directly with society.

    Dustin (b8d6d1)

  104. #29

    What Trump should do is find out if there is a memo as to why they are not prosecuting McCabe and the release it publicly. If there is no memo, order one written and release it. And have them specifically address how McCabe is different from Flynn, who from what I can tell, did less and is being prosecuted.

    But what Trump will do is release hysterical Tweets and then do nothing.

    Bored Lawyer (998177) — 2/14/2020 @ 10:52 am

    I don’t think he should do that. If they’re not going to charge McCabe, then they shouldn’t air out his dirty laundry.

    Yes, it’s a problem in that McCabe wasn’t charged… but he was fired and lost his pension. That’s not “nothing”…

    whembly (c30c83)

  105. I think elected judges is too democratic but the idea of separation seems to work just fine.

    Some states with judicial appointments allow for what is essentially a recall election at intervals. I kind of like that idea.

    Ragspierre (d9bec9)

  106. “You really think that the DOJ attorneys that report to Barr are going easy on McCabe out of professional courtesy? After 2 years of sessions and one year of Barr? That’s just silly.”
    Time123 (a7a01b) — 2/14/2020 @ 1:00 pm

    The list of prosecutors that have brought charges against fellow prosecutors must be quite long. Name one — besides Nifong, who should still be in prison but only did one night. Name a federal prosecutor.

    Munroe (dd6b64)

  107. You really think that the DOJ attorneys that report to Barr are going easy on McCabe out of professional courtesy? After 2 years of sessions and one year of Barr? That’s just silly.

    Time123 (a7a01b) — 2/14/2020 @ 1:00 pm

    Would like to revise and extend my comment. You’re being serious so I owe you the courtesy of being polite.

    1. Prosecutors and professional courtesy.

    I think after 2 years of sessions and year of Barr the decision makers at the DOJ are not going to cut McCabe a break based on professional courtesy. If this were a low level case that wasn’t so visibly important to the President I might be convinced otherwise. But not given Trump what he want’s isn’t a good career move at the moment.

    2. Even without #1, DC jury makes it a waste of time and resources.

    I think you overstate this. I don’t think it’s an unfriendly venue for McCabe but I also don’t buy that it’s so biased it’s pointless to hold a trial. Do you have any actual evidence to support this? Even if I stipulate what you say I think the political pain of not bringing charges would encourage them to take a chance, if they felt they had good evidence to support their case.

    3. Juxtaposed against the Flynn and Stone developments makes a not so subtle point.

    I’m honestly not sure what you mean by this. But I will point out that Flynn has confessed to lying to federal agents multiple times under oath.

    Time123 (a7a01b)

  108. “Especially when what he allegedly “lied” about involved releasing information helpful to Donald Trump’s election campaign.”
    Dave (1bb933) — 2/14/2020 @ 1:01 pm

    Surprise, surprise. A bad faith argument from Dave.

    You know the background, and know that’s false. Let’s see if you will fix it.

    Munroe (dd6b64)

  109. Some states with judicial appointments allow for what is essentially a recall election at intervals. I kind of like that idea.

    Ragspierre (d9bec9) — 2/14/2020 @ 1:06 pm

    I definitely like this idea. Ross Perot spoiled the 1992 contest, and therefore RBG gets to be one of the most powerful people in the world for 40 years? That’s too much.

    On the other hand, unrelated to the judiciary, administrations should try to include opposing points of view, like Obama did by keeping Bush’s secretary of defense. That kind of idea is easier to do if these leaders focus on their work and not politics. I obviously can’t see a republican having Eric Holder in their administration.

    Dustin (b8d6d1)

  110. “You really think that the DOJ attorneys that report to Barr are going easy on McCabe out of professional courtesy? After 2 years of sessions and one year of Barr? That’s just silly.”
    Time123 (a7a01b) — 2/14/2020 @ 1:00 pm

    The list of prosecutors that have brought charges against fellow prosecutors must be quite long. Name one — besides Nifong, who should still be in prison but only did one night. Name a federal prosecutor.

    Munroe (dd6b64) — 2/14/2020 @ 1:08 pm

    Bianca Forde

    Time123 (daab2f)

  111. Time123 (a7a01b) — 2/14/2020 @ 12:42 pm

    I agree with most of what you wrote.

    However, Dustin started with

    Imagine Comey is [the] president with all the powers Trump exercises, with democrats in the Senate laughing at any charge. Imagine the heart of the matter is our elections, and Comey’s only answering to these elections.

    to

    Maybe because the AG is himself elected.

    I was trying to get Dustin to see that he’s just moving the problem around. I’m not suggesting we leave it only to elections but If you can’t elect a POTUS who will faithfully execute the laws how are you going to elect an AG who does? Electing the AG would simply make it more political. There isn’t some magical dimension of perfect AG’s that we are unable to access only because of our political system. The current fear is of Trump but this magic Trump destroying AG that is being proposed will be a new fear not long after he’s found.

    Allowing the executive branch, or elected LEO, to pick and choose how / when to apply the laws based on political or policy preference is not a just system.

    There is no version of this I think most Americans would tolerate when you work out the details of what that means. If the LEO isn’t elected then the LEO is picked by someone who is. That is a debatable distinction. That will always be a political decision of some sort. So, far I haven’t heard a suggestion for picking a chief LEO that doesn’t involve elections of some sort and I believe most Americans think the people should have some say in this process.

    Even if you had such a method, absent completely removing any form of prosecutorial discretion, whoever is picked as LEO will get some latitude in picking and choosing how to apply laws. It could be argued that removing prosecutorial discretion would lead to more injustice not less.

    frosty (f27e97)

  112. #68

    Let me add that Trump can’t use the DOJ as his personal law firm, even if something happens that is unfair. There is not an Unfairness Exception for Presidential power in the Constitution or Bill of Rights.

    DRJ (15874d) — 2/14/2020 @ 12:26 pm

    Trump still can end/close ongoing investigations, even if others believe it is warranted.

    What he cannot do and really should NOT do, is interfere during active judiciary cases. He should shut up and wait for the verdict, then pardon as appropriate.

    But, Trump can’t do that. He needs to get his tweet in…

    whembly (c30c83)

  113. Time123 (daab2f) — 2/14/2020 @ 1:19 pm

    A drunk driving arrest. OK, you got me. Really. I’m sure many prosecutors have been charged for DUI, not paying child support, tax evasion, and domestic abuse.

    How about something actually related to their job? Prosecutorial misconduct, and such.

    Munroe (f62389)

  114. #80

    Presidents can direct government resources in the manner they choose provided it is consistent with the Constitution, Bill of Rights, and applicable statutes. It is up to the government agencies and departments to follow legal and procedural rules to implement (execute) the Presidential policies and directives. Trump doesn’t get to short-circuit that process, especially for personal reasons like protecting friends or allies.

    Remember how wrong it was for Obama’s DOJ to intervene in the Philadelphia’s a Black Panther verdict or for Obama to criticize the arrest of Henry Louis Gates? This is what Trump is doing.

    DRJ (15874d) — 2/14/2020 @ 12:38 pm

    These agencies are not independent from the Office of the President.

    POTUS does have the power to short-circuit that process for any reason, as all the executive power is vested in him. That’s what the Unity Executive means:
    https://en.wikipedia.org/wiki/Unitary_executive_theory

    Whether it’s wise for the POTUS to do that is definitely another question.

    whembly (c30c83)

  115. #85

    A simple truth that I get a lot of hate for stating is that NOBODY should EVER use the term “criminal justice” referring to our (or any) system.

    On a good day, we have a “criminal legal system”. On a bad day it can be simple tyranny. It should never be confused with a promise of “justice”. You can’t expect that in this old world.

    Ragspierre (d9bec9) — 2/14/2020 @ 12:41 pm

    I am 100% in agreement with you here.

    whembly (c30c83)

  116. This is what Trump is really saying in every tweet.

    felipe (023cc9)

  117. #86

    Why do you think the Stevens prosecutors got off?

    Because in the history of time, no federal prosecutor has been sanctioned?

    Kevin M (ab1c11) — 2/14/2020 @ 12:42 pm

    It’s really, REALLY rare for prosecutors to be sanctioned in any meaningful way.

    whembly (c30c83)

  118. POTUS does have the power to short-circuit that process for any reason, as all the executive power is vested in him. That’s what the Unity Executive means:
    https://en.wikipedia.org/wiki/Unitary_executive_theory

    Whether it’s wise for the POTUS to do that is definitely another question.

    whembly (c30c83) — 2/14/2020 @ 1:27 pm

    Suppose foe sake of discussion we no longer wanted a unitary executive… I think an unaffiliated justice department would be early on the list of things to take away. I also think pardons.

    Dustin (b8d6d1)

  119. #95

    I think Trump can “start or stop any investigation he wants,” frosty, but he has to do it for a proper reason. It can’t be a corrupt or personal reason. Stopping the Mueller investigation because it hurt him would have been both.

    DRJ (15874d) — 2/14/2020 @ 12:53 pm

    I’m pretty sure he can request an investigation… but, not how’s it is conducted. I think at most he can reassign people/assets that could favorably/disfavorably impact such investigations.

    He does, however, have the power to stop any investigations.

    Prosecutorail discretion and all that jazz…

    Even for corrupt purposes. He can stop it. But, what he cannot avoid in this case, is accountability, either at the ballot box or from Article I or III branch.

    whembly (c30c83)

  120. @99

    You really think that the DOJ attorneys that report to Barr are going easy on McCabe out of professional courtesy? After 2 years of sessions and one year of Barr? That’s just silly.

    Time123 (a7a01b) — 2/14/2020 @ 1:00 pm

    McCabe didn’t really escape accountablity… he was fired and lost his pension. That’s not nothing.

    Furthermore, I’d be willing to wager that McCabe cooperated with Bar/Durham investigations in return for no further legal sanctions.

    whembly (c30c83)

  121. ustin (b8d6d1) — 2/14/2020 @ 11:23 am

    The question is more fundamental. How much power do we want our federal government to have? Right now, Trump says his power is quote “absolute.”

    As far as the Executive powers in Article II of the Umited States constitution goes.

    Grand inquisitors who refuse to engage in a back and forth can endlessly say something isn’t perfect, but the real problem is what corruption has exposed. When we agree that we need to work out an independent law enforcement function that does not serve a political campaign, we can work through the details imperfectly, but with a common sense purpose. And as always, reduce its power as much as we can, since this should be a literal federal government. Not an absolute power one.

    I elieve there shold be competition in law enforcement. That goes to the problem of important things not being prosecuted. But something needs to deal with too much.

    Sammy Finkelman (8e96a4)

  122. Dustin (b8d6d1) — 2/14/2020 @ 12:53 pm

    Let me offer one more idea: why not give an independent office pardoning power, that office being more of a court-like panel, and remove that power from the president?

    What you are describing sounds like an appeal process. And to a degree we already have something like you’re describing, the Office of the Pardon Attorney.

    But I think this misses the point of the pardon power. The whole point of a pardon is to let a guilty person go free. The final decision on that shouldn’t be by committee.

    I think your problem is with pardon’s involving a POTUS conflict of interest. It doesn’t make sense to whack at the whole pardon pinata to get at that particular fly.

    frosty (f27e97)

  123. 119. If it;s corrupt, it’s impeachable and probably also illegal.

    Sammy Finkelman (8e96a4)

  124. It’s with the president so he can hire people (but it isn;t being used for those purposes, or settle a civil war.

    Sammy Finkelman (8e96a4)

  125. 95. DRJ (15874d) — 2/14/2020 @ 12:53 pm

    Stopping the Mueller investigation because it hurt him would have been both.

    What abou stopping it because it;s biased?

    Well, he didn’t stop it anyway.

    Sammy Finkelman (8e96a4)

  126. Dustin (b8d6d1) — 2/14/2020 @ 1:31 pm

    Suppose for [the] sake of discussion we no longer wanted a unitary executive… I think an unaffiliated justice department would be early on the list of things to take away. I also think pardons.

    For the sake of discussion, what would we actually want instead? How would this unaffiliated justice department be staffed?

    frosty (f27e97)

  127. @118

    POTUS does have the power to short-circuit that process for any reason, as all the executive power is vested in him. That’s what the Unity Executive means:
    https://en.wikipedia.org/wiki/Unitary_executive_theory

    Whether it’s wise for the POTUS to do that is definitely another question.

    whembly (c30c83) — 2/14/2020 @ 1:27 pm

    Suppose foe sake of discussion we no longer wanted a unitary executive… I think an unaffiliated justice department would be early on the list of things to take away. I also think pardons.

    Dustin (b8d6d1) — 2/14/2020 @ 1:31 pm

    That would require quite a bit of Constitutional amendments, such that I don’t think it’d ever be feasible.

    Presidential Pardons is actually a checks & balance provision that I wished presidents employed more often and even early in the tenures. That way, it becomes a record that voters can express their up/down votes and also, allows Congress to express displeasure if POTUS overreach via oversights and holding the power of the purse of his head. In the past, most presidents drop large numbers of pardons towards the end of their presidency (especially controversial ones), which is kind of a chicken-bleep way to exercise this power.

    That’s why I really want Trump to pardon everyone swept up by the Mueller investigation…now. Let it be part of the conversation whether or not Trump ought to be re-elected.

    whembly (c30c83)

  128. @113, so if I look one up on google what happens? You change your mind or you find another hoop for me to jump through?

    Look If your point is that we don’t punish prosecutor misconduct when we should I’m in 100%. I just don’t think Trump cares about that or has done anything to make the situation better. So I don’t think this concern is sincere.

    Also I don’t think that in this circumstance that’s what’s at play. I think the other factors would far out way that.

    Time123 (a7a01b)

  129. 123

    119. If it;s corrupt, it’s impeachable and probably also illegal.

    Sammy Finkelman (8e96a4) — 2/14/2020 @ 1:44 pm

    Impeachable? Probably.

    Illegal? No. The president is literally the manifestation of the Constitutional Article II power.

    That’s why the founders gave the impeachment power to Congress and made it so that it doesn’t require a criminal act to be impeachable.

    whembly (c30c83)

  130. That would require quite a bit of Constitutional amendments, such that I don’t think it’d ever be feasible.

    Presidential Pardons is actually a checks & balance provision that I wished presidents employed more often and even early in the tenures. That way, it becomes a record that voters can express their up/down votes and also, allows Congress to express displeasure if POTUS overreach via oversights and holding the power of the purse of his head. In the past, most presidents drop large numbers of pardons towards the end of their presidency (especially controversial ones), which is kind of a chicken-bleep way to exercise this power.

    That’s why I really want Trump to pardon everyone swept up by the Mueller investigation…now. Let it be part of the conversation whether or not Trump ought to be re-elected.

    whembly (c30c83) — 2/14/2020 @ 1:51 pm

    You are right about the feasibility and I think your point about pardons is also an excellent one. Trump might even do that. While Clinton hid from what he was doing, Trump’s tweets show he does not feel what he’s doing is wrong. Might as well pardon them all before we vote.

    Dustin (b8d6d1)

  131. WRT McCabe, I had not known that the prosecutors had not even managed to obtain a grand jury indictment, but that appears to be the case.

    Ragspierre (d9bec9)

  132. Stone defense asks for new trial in sealed motion.

    Ragspierre (d9bec9)

  133. @133, is this new new? I thought the judge denied it?

    whembly (c30c83)

  134. Brand new.

    Ragspierre (d9bec9)

  135. @135

    Brand new.

    Ragspierre (d9bec9) — 2/14/2020 @ 2:51 pm

    Interesting… it gotta be related to that bias’ed jurors, but I doubt the judge would grant it.

    whembly (c30c83)

  136. We’ll see…

    My read was that this judge was very careful during jury selection.

    Ragspierre (d9bec9)

  137. You know the background, and know that’s false. Let’s see if you will fix it.

    On the contrary, I know the background and know every word of what I wrote is true.

    A Clinton operative in the DoJ wanted McCabe to put out a story that the investigation of the Clinton Foundation had been wrapped up. It wasn’t true and McCabe refused.

    So the Clinton operative leaked the false story anyway. And in consultation with the FBI Office of Legal Counsel, McCabe contacted a reporter and shot the false, Clinton-friendly story down.

    Whadda maroon!

    Dave (b1bec7)

  138. I see the never trumpers once upon a time guy avenatti/2020
    is now going to do 10-20.

    mg (8cbc69)

  139. whembly,

    It feels like you are ignoring the constraints on Presidential power imposed by the Constitution and Bill of Rights. Do you think they restrain the executive powers and, if so, how?

    Sammy,

    At some point, every President (like every target/defendant) thinks investigations are unfair and biased. They probably are to some extent because they are run by humans, which is why our system promises a specific process instead of justice. Justice is whatever the rulers deign to give us. In our system, having a specific process is our justice and our protection.

    DRJ (15874d)

  140. Dave, that is indeed my understanding of what happened. It can be odd to many that these guys aren’t on some partisan team, but it’s probably very often the case. I know that if I were investigating something relating to Trump I’d be twice as careful, rather than half, just because of my inherent strong political views.

    I elieve there shold be competition in law enforcement. That goes to the problem of important things not being prosecuted. But something needs to deal with too much.

    Sammy Finkelman (8e96a4) — 2/14/2020 @ 1:43 pm

    Sammy, I missed this one as I’ve skimmed over a lot of comments in this thread (which has been a genuinely enjoyable thread!).

    This is an interesting point you raise. I largely wish there was less federal law enforcement and more state level, not because I think the FBI or DOJ are sinister, but because law enforcement should be a flow and function from what the community wants, rather than folks from afar shaping our conduct.

    I’m trying to imagine what California, Texas, Colorado would be like, if the federal government had absolutely no say about it, no real reach, no education regs, etc. Or what if we just weren’t this huge divided country at all, but were three or four countries that had defense and trade agreements? It seems less wild than Sanders vs Trump, in a lot of ways.

    Dustin (b8d6d1)

  141. Stone filed a Motion to Dismiss that sought a change of venue if the court refused to dismiss. I think it argued jurisdiction/venue in DC had marginal contacts/nexus since it was based on the fact that the DNC headquarters/servers were in DC and Stone was negotiating with the hackers of those servers. Defense counsel argued that Stone’s contacts were not in DC and linking him to the DNC via the hackers was too weak. I believe the defense wanted a change of venue to get away from that jury pool.

    I would argue that this motion for new trial involves the new juror information insofar as it relates to the concerns about bias expressed in that motion and during jury selection. The judge will not want to grant the motion because jury pools are easily tainted. Arguably Stone’s early behavior was qn effort to influence his jury and trial. It will be interesting to see what happens but I still feel Stone should hope for a light sentence instead of new trial. He could be convicted anywhere and the sentencing rules are the same in all federal courts.

    DRJ (15874d)

  142. Dave (b1bec7) — 2/14/2020 @ 4:07 pm

    Nice try. McCabe sat on the emails newly found on Carlos Danger’s laptop. Even Comey was perplexed, after the fact when he was asked about it. The leak was an attempt to shoot down speculation that he was sandbagging for Clinton, which was exactly what he was doing. And, he lied about it.

    But, keep trying to minimize or excuse it. Because, principles or something….

    Munroe (dd6b64)

  143. whembly,

    If a President does an illegal or corrupt act then that violates his oath and the Takings Clause of the Constitution (as well as potentially several rights in the Bill of Rights) and opens the possibility of impeachment. If so, then there is accountability. It is a different kind of legal process/accountability than what you or I might face for illegal or corrupt acts but it is still a consequence.

    DRJ (15874d)

  144. Nice try. McCabe sat on the emails newly found on Carlos Danger’s laptop. Even Comey was perplexed, after the fact when he was asked about it. The leak was an attempt to shoot down speculation that he was sandbagging for Clinton, which was exactly what he was doing. And, he lied about it.

    McCabe’s “lack of candor” and referral by the IG had nothing to do with the Carlos Danger emails.

    Educate yourself.

    A Justice Department review is expected to criticize the former F.B.I. deputy director, Andrew G. McCabe, for authorizing the disclosure of information about a continuing investigation to journalists, according to four people familiar with the inquiry.

    Such a damning report would give President Trump new ammunition to criticize Mr. McCabe, who is at the center of Mr. Trump’s theory that “deep state” actors inside the F.B.I. have been working to sabotage his presidency. But Mr. McCabe’s disclosures to the news media do not fit neatly into that assumption: They contributed to a negative article about Hillary Clinton and the Obama administration’s Justice Department — not Mr. Trump.

    Another blow to the TrumpWorld Deep-State fantasy narrative is that Comey was the IG’s star witness against his supposed co-conspirator McCabe.

    Dave (1bb933)

  145. @140 whembly,

    It feels like you are ignoring the constraints on Presidential power imposed by the Constitution and Bill of Rights. Do you think they restrain the executive powers and, if so, how?

    DRJ (15874d) — 2/14/2020 @ 4:26 pm
    Of course</em> the Constitution and the Bill of Rights constrains executive powers… it constraints ALL government powers.

    But the idea that the investigative branch of the executive department, namely the DOJ, is independent of the whims of whomever’s in office is patently untrue.

    whembly (c30c83)

  146. barr will never convict ham sandwiches, clinton cronies or obama slugs

    mg (8cbc69)

  147. 144

    whembly,

    If a President does an illegal or corrupt act then that violates his oath and the Takings Clause of the Constitution (as well as potentially several rights in the Bill of Rights) and opens the possibility of impeachment. If so, then there is accountability. It is a different kind of legal process/accountability than what you or I might face for illegal or corrupt acts but it is still a consequence.

    DRJ (15874d) — 2/14/2020 @ 4:51 pm

    100% in agreement with you. I’m not arguing that the President is free from consequences in exercising his article II powers, if such act is deemed corrupt.

    My point was, Presidents could legally interfere with ongoing investigations because he literally has supremacy over that department. If, there was an investigation looking into “friends of Trump” and he ordered a different prosecutor (with known favorable Trump ties) to take the lead instead of a persecutor who was appointed by his predecessor, he has full rights to do so. Again, as you argued here, it *could* amount to dire consequences depending on how much ire it draws politically if this act was viewed as corrupt, but there is nothing that can stop the president from reassigning the original prosecutor.

    There is no constitutional independence between the DOJ and POTUS. There are simply in-house policies and procedures that heavily encourages unofficial independence from political influence because we need the public to trust the process that Justice is Blind. The DOJ is actually a congressional creation (they fund it) and has statutory oversight (checks & balances) to ensure there’s political accountability.

    whembly (c30c83)

  148. Sorry, whembly, it doesn’t work like that. The DOJ is a creation of Congress and it has no more authority than what Congress has invested it with. The courts are a child of Articles I and III and whoever wants to practice in them has to do it according to their rules.

    nk (9651fb)

  149. @nk not sure I understand…I don’t think you’re disagreeing with me. (also, I wasn’t talking about the courts).

    whembly (c30c83)

  150. When I mean political influence, I meant between DOJ and WH. (not DOJ and Congress).

    whembly (c30c83)

  151. On an Android, at my sooper-seekrit location. Hard to read, hard to type.

    nk (9651fb)

  152. Barr: I agreed with the prosecution of Roger Stone and found it “righteous”.

    You can read all about it at HotAir.

    Ragspierre (d9bec9)

  153. There is no constitutional independence between the DOJ and POTUS.

    The DOJ is accountable to the President but it is independent in some respects.

    DRJ (15874d)

  154. We have a solution to the problem, our Congress simply refuses to use it. An attorney general can be impeached by congress, so can the President. Either or both could be removed from office. But, as we have seen, Congress won’t.

    Nic (896fdf)

  155. http://patterico.com/2020/02/14/trump-claims-its-his-right-to-intervene-in-doj-criminal-cases/#comment-2307785

    DRJ, your comment with the link to the Lawfare article is very informative. Thank you.

    Here’s the problem: the structure you describe is theoretical. The recurring issue we face is: what happens when the President ignores the limitations the Constitution puts on him?

    As nk says, there are limitations in particular criminal cases that can be enforced by the courts.

    But there are many limitations that cannot be addressed by courts. They can be addressed only (theoretically) by impeachment. And what we have learned about impeachment is that, for most and perhaps all abuses that fall within clear Article II grants of authority, and for most crimes, the two-party system insures that impeachment cannot possibly work.

    Here’s why. With a tiny margin of error, Senators will not vote to convict a President of their own party. And it is pretty much impossible to construct a hypothetical situation in which there are enough voters of one party to elect a President from that party, without also ensuring at least 34 Senators from the same party. There is the syllogism that results in the utter and complete neutering of any possibility of impeachment.

    The only other check is prosecution, and due to our theories of a unitary executive and the 1970s memo opining that a sitting president cannot be indicted, a President is above the law.

    Dustin is right. Some fundamental structural reform must happen. Also, none will.

    Patterico (115b1f)

  156. Bottom line: we are screwed. Our only hope is to elect a person who is not corrupt. That’s a bad bet. The better bet is a serious and fundamental structural reform for which there is zero appetite.

    Patterico (115b1f)

  157. America is in a precarious stage. We seem to be recreating the Know Nothing era because life is complicated and people feel overwhelmed, but this can happen during tumultuous times. I think it would make a difference if: We return to teaching civics and basic American history in our schools, and we treat law like something anyone can understand — not just lawyers. (The internet makes it easy to inform people about many important concepts including legal issues, something you and your blog have done for years.) To borrow from Thomas Paine, there will be times that try men’s souls and some things will not be easily conquered, but they are worth the effort.

    DRJ (15874d)

  158. I guess an immediate and practical solution is to vote for a divided national government.

    DRJ (15874d)

  159. Don’t you think some people felt this way during the FDR years, Louisiana’s Huey Long, Texas’ Ma and Pa Ferguson, and other times? Those were a long time ago and long forgotten, but my parents lived then and I know they felt that way. Populism happens.

    DRJ (15874d)

  160. I agree, DRJ. Also I think that populism was all terrible too. (I think you might agree.)

    I had one fellow on Twitter say, basically, well, if you are going to remove Trump for this, why not remove FDR for court packing, Truman for his actions in the railroad strike, and on and on and on? To which my reaction is: right. Why not?

    Patterico (115b1f)

  161. I guess an immediate and practical solution is to vote for a divided national government.

    But an executive willing to govern by fiat holds all the cards in a divided government.

    And if the executive wants to govern corruptly – up to and including inviting foreign governments to tamper with elections on their behalf – they can do so with impunity as long as they have 34 senators backing them up.

    Dave (1bb933)

  162. I agree but sometimes people get so fed up that they want a strongman to fix things, and they don’t care about rules or process. I understand that feeling but history tells us it doesn’t work. It is political candy that everyone craves until they don’t.

    DRJ (15874d)

  163. @159 Mostly I like divided government, but I feel like it might be another blue year and yet I cannot vote for the current disorganized crime boss for President.

    Nic (896fdf)

  164. Divided government as in a President from one party and Congress from another.

    DRJ (15874d)

  165. The point of requiring such a high bar to remove a President, including bipartisan support, is to prevent a President being removed for political reasons and/or relative trivia, like they tried to do to Trump (and others in the past). It’s a feature, not a bug.

    Nixon resigned and probably would have been convicted had he been impeached.

    Make America Ordered Again (23f793)

  166. There is nothing “trivial” about T-rump’s corruption. And there’s no “requiring” of bipartisan support as such. Just honest people who see what’s real and have the moral courage to act on it for the good of their nation, regardless of crass politics. We had the first part; everyone could see what T-rump had done (though some lied to their everlasting shame), that he was lying about it (true to form), and what their duty was in light of the reality of his corrupt abuse of office.

    Where our representatives failed their oaths of office was in the moral courage and crass politics arenas.

    There’s nothing in the history of the presidency to indicate that the impeachment process could work as intended, protecting the office and our republic from the misdeeds of a thug like T-rump. We are all “crooked timber” and people in office are some of the crookedest. I’d like to think that this disgraceful episode is an aberration, but I know too much history to allow that.

    Ragspierre (d9bec9)

  167. And there’s no “requiring” of bipartisan support as such.

    I know that, but effectively it’s the same because of the two thirds requirement.

    Make America Ordered Again (23f793)

  168. Bill Wittle and his sidekick Scott Ott have a great discussion today about Trump’s many faults and his many strengths. They’re frustrated with is faults, but point out it goes to his nature and ties in with his strengths. “You can’t have one without the other,” in essence, and the last several GOP candidates before him were milquetoast and ineffective, so we need Trump at this time.

    You may disagree with their conclusion, but I think you will all get something out of this (I can’t send a link through the spam filter, sorry; it’s on Bill Wittle’s YouTube channel):

    “Impossible Job: Attorney General Barr Tells Trump to Put Down the Twitter”

    Make America Ordered Again (23f793)

  169. https://www.politico.com/news/2020/02/14/alexander-vindman-no-army-investigation-115286

    That’ll be one more piece of news that gives the thug-in-chief the sads.

    The plan is for Vindman to attend one of the military colleges, which is a career enhancement.

    Where is that boob that was assuring us that Duh Donald could have Vindman executed for disobeying an order…???

    Ragspierre (d9bec9)

  170. 162. Obama involved the intelligence agencies and state departments of 4? Different countries in spying on the political campaign of President Trump. So repeating your lie all the time just proves you are fine with the activity, as long as it’s your team.

    Iowantwo (f843a2)

  171. “You can’t have one without the other,” in essence

    More of your complete BS. It seems you cannot NOT spout this crap.

    Ragspierre (d9bec9)

  172. 171, what lie are you fantasizing about now…???

    Ragspierre (d9bec9)

  173. Are those a Combat Infantryman’s Badge, a Ranger tab, and paratrooper wings on Vindman’s uniform? That would trump a Dr, Scholl’s sticker and a catsup stain I think.

    nk (9651fb)

  174. Actually, being elected President quite literally trumps those. Perhaps Lt. Col. Vindman did not realize that, when it comes to policy.

    Make America Ordered Again (23f793)

  175. Perhaps Lt. Col. Vindman did not realize that, when it comes to policy.

    If by “policy” you mean rank overt corruption, then yeah. I bet he didn’t realize that the orange raccoon could “trump” his oath of office.

    Ragspierre (d9bec9)

  176. Rags, will the Lt. Col. get an assignment similar to one of Gen. Petreaus’ early posts?

    urbanleftbehind (eb251a)

  177. Actually, being elected President quite literally trumps those. Perhaps Lt. Col. Vindman did not realize that, when it comes to policy.

    Make America Ordered Again (23f793) — 2/15/2020 @ 6:17 am

    Ladies and gentlemen, the Republican Party.

    Dustin (b8d6d1)

  178. That link is defunct, urbanleftbehild. Would you like to summarize it?

    Make America Ordered Again (23f793)

  179. Actually, being elected President quite literally trumps those. Perhaps Lt. Col. Vindman did not realize that, when it comes to policy.

    Make America Ordered Again (23f793) — 2/15/2020 @ 6:17 am

    Ladies and gentlemen, the Republican Party.

    Dustin (b8d6d1) — 2/15/2020 @ 7:16 am

    Try the Constitution and the American system of government with civilian leadership of the military.

    Make America Ordered Again (23f793)

  180. Actually, no!

    The president has no right to make unlawful orders. He could fake 125% support in the next election and we can still say no to many of his orders. In fact, everything Trump tried to do with Ukraine, bribery, and Biden, totally failed. Vindman had to be willing to engage in some degree of sacrifice, but he won.

    That seems to be where the anger at this hero is coming from. But silently, many respect the hell out of him and know he can be trusted.

    Dustin (b8d6d1)

  181. The president has no right to make unlawful orders.

    I mentioned specifically policy. You can look it up: you should no because you quoted it.

    Make America Ordered Again (23f793)

  182. Sorry MAOA, the president has no right to give unlawful orders (this is in the USA). You can do me a favor and update the Russian civics wikipedia page about it if you understand.

    Feel free to ask more questions and we’ll help you understand our culture.

    Dustin (b8d6d1)

  183. Duh Donald made large about the applause as Vindman left the WH.

    I do not think they meant what he thinks they meant.

    Ragspierre (d9bec9)

  184. Duh Donald made large about the applause as Vindman left the WH.

    I missed that little detail.

    What a worthwhile target of our adoration, Trump is.

    Dustin (b8d6d1)

  185. You could do something other than straw manning and red herrings, Dustin. I will not engage with you about this further because everyone here can see my point.

    Lt. Col.’s bona fide military accomplishment and qualifications (which I’ve talked about positively before, listing his commendations in a previous thread) do not change the fact that the elected President is the Commander in Chief. Any President, even a heroic veteran President, will have all sorts of military and civilian personnel with qualifictions that exceed his in various ways in specific areas. You’re dishonestly moving the goalposts to “illegal orders” when I specifically mentioned policy.v

    Anyway, Ragspierre pointed out that Vindman is being sent to a senior service college, likely the Army War College. This indicates that he’s being groomed for a promotion to Colonel. The army has an “up or out” culture, and in Vindman’s case, it appears the army is nodding “up.”

    Make America Ordered Again (23f793)

  186. Oh hey you’re really making a lot of great points. That’s because you are such a sincere, good faith, totally honest commenter, even though you refuse to answer the question about whether you’ve been banned and have used a VPN to comment here.

    Thanks man! I’m sure to get a lot of reasonable analysis of Donald Trump by reading your comments carefully.

    Dustin (b8d6d1)

  187. mr. president trump never got the clap

    he knew land mines were vaginas and he was very careful not to step on one with his bone spurs

    nk (9651fb)

  188. Presidents have policies about how to execute our laws but Congress also has policies — evidenced by the bills it passes and the funding it appropriates to implement those policies. Congress has a bipartisan policy toward Ukraine because it stands up to Russian aggression. Congress appropriated money to implement its goals in Ukraine.

    Trump withheld the funds and thereby frustrated the Congressional goals for personal, political gain. That is wrong/unlawful. Our system may not make it easy to hold him accountable but it doesn’t change the wrongfulness of what he did.

    DRJ (15874d)

  189. How Vindman is illustrative of the point of the post is that Trump’s Article II (Eleven) powers aren’t worth a plugged nickel in his case. He is protected by the UCMJ, and by the Army which takes care of its own for both good and bad. It’s the brass, not the orange, that Vindman needs to not piss off.

    nk (9651fb)

  190. Holly Petreaus…too bad I cant make a MAD magazine back inside cover of it, MAOA.

    urbanleftbehind (eb251a)

  191. And I should have said this sooner: Great post, Dana.

    nk (9651fb)

  192. Thanks, nk. You’re always generous to me. I didn’t opine in the post because there are times when simply laying out the facts provides a more effective jumping off point for discussion. And it’s nice to see that commenters continue to care about legal issues and want to discuss their relevance as much always.

    Dana (4fb37f)

  193. I’m surprised no one is commenting about this latest abuse of power on this thread.

    https://thehill.com/homenews/state-watch/483026-new-york-ag-calls-out-trump-for-telling-cuomo-to-stop-lawsuits-i-file

    Trump’s DHS has singled out New York and prohibited the state from participating in Global Entry and four Trusted Traveler Programs, by withholding funds. These programs were implemented to facilitate border crossings, such as those along the Canadian border, and at international airports for citizens and visa holders. Approved applicants are allowed easier access and shorter lines at bridges, airports and shipping ports.

    Apparently, the reason for the exclusion of New York from these programs is because the state legislature passed a law, signed by the governor in June, that allows undocumented immigrants to apply for driver’s licenses, whether they entered the country legally or not. The law also prevents ICE access to New York DMV records. In order to apply for a driver’s license, undocumented immigrants must be vetted, including a person-to-person interview, before they can enroll in driving schools and take the driver’s test. The law went into effect in December.

    Trump claims the withholding of funds is a matter of National Security. But fourteen states have passed similar laws, so why single out New York?

    Well, Trump publicly stated he would restore the funding and allow participation in GE and TTPs, if New York dropped the investigations into and the lawsuits against him, his family and their businesses, of which there many. Imagine that. He’s trying to do to New York what he tried to do to Ukraine, coerce a sovereign state for his personal and political benefit. ‘I’ll grant the funding, if you do me a favor,’ sound familiar Since the Senate declined to allow witnesses and documents in the impeachment trial, and refused to convict him for abuse of power, why not? He really does think he can do whatever he wants, because the Republicans are enabling him.

    Trump is probably still fuming over the fact that the SDNY successfully prosecuted his Foundation for illegal use of funds and campaign finance violations, shut it down and fined him $2 million. Or maybe, just maybe, he’s still upset over the fact that in the 1970s the SDNY successfully prosecuted him for violations of the Fair Housing Act, for continuing the practice begun by his slum lord father, who was arrested on the streets of New York in the 1920s for participating in a KKK march without a proper permit, refusing to rent to African Americans, Catholics and Jews. He was fined $1 million for that infraction. Old grudges die hard, don’t they?

    Not that he hasn’t continued his discriminatory practices at his hotels, except now it’s in hiring, against American citizens no less. He preferentially hires eastern Europeans on H2-B visas, and has repeatedly requested an increase in those visa applications. (How do you think he was able to import his third wife?) He also preferentially hires undocumented or illegal immigrants over citizens. He does this because they work for lower wages, don’t require health coverage insurance, and he can hold the threat of deportation over them.

    Let’s see, the investigations into and the lawsuits against the Trump Organization, and there are literally hundreds, include tax evasion, wire fraud, corrupt business practices, money laundering, illegal use of funds, etc. ad nauseam. And it’s not just in Manhattan, it’s in Brooklyn, New Jersey and Chicago, where Kushner is being investigated as well, and in Miami. Practically everywhere the Trumps and Kushners have business practices, they’re under investigation, including in foreign countries.

    This man, and I hesitate to use that word to refer to him, is so venal and corrupt, it is mind-boggling the adulation awarded to him, by Evangelicals and the Republican party as a whole. He’s threatening to withhold federal funds to a sovereign state in exchange for dropping investigations and prosecutions, for crying out loud. Is he going to start denying federal funds to New Jersey, Connecticut, Illinois, Florida, California, Nevada, whatever state or country he or his family has businesses in, because they have investigations into his corrupt business practices?

    The Senate has set a dangerous precedent, but then it hasn’t been a deliberative body for a long while, since it allowed for popular elections instead of state legislature appointments. The 17th amendment needs to be repealed, as does the 16th. The American people are at a crisis. We need to hold a Constitutional Convention, but that is up to the state legislatures.

    I favor term limits. We already have one on the Executive, eight years, set by Washington by the way. How about twelve years for Congress? That would be two terms for a Senator and six terms for a Representative. I oppose lifetime appointments to the Judiciary, including the Supreme Court. Twelve years, subject to re-appointment, seems enough for me.

    Think about it. Eight years for a President, twelve years for a Senator or Representative, and for a Judge. That would allow for turnover, and I’m all in for turnover.

    We need to seriously consider what form of government we want to live under. Because the current one, is not doing us, the people, any favors.

    It’s all about what is best for the politicians, not the people. Politicians will say and do whatever they have to say and do anything to secure votes. I understand that, it’s all about money.

    The two parties, the Democratic and Republican, have so corrupted the electoral process that neither deserves a vote from any real American.

    Gawain's Ghost (b25cd1)

  194. “He’s trying to do to New York what he tried to do to Ukraine, coerce a sovereign state for his personal and political benefit.”

    The thundering hypocritical arrogance of liberals knows no bounds, but calling New York a ‘sovereign‘ state is a step above in the sedition games these lawyers play.

    “He’s threatening to withhold federal funds to a sovereign state in exchange for dropping investigations and prosecutions,”

    The Fedgov has unlimited money, NY state has unlimited lawyers and Wall Street funds to harrass and eat out the substance of any individual they think is too powerful. If anything the arrangement seems far too fair to New York State, and given that yet another New York mayor is aiming to outright buy the presidency if he can’t litigate the current one out of effective action, I’d say that NY really does need something closer to, but not quite, shots on Fifth Avenue to bring it to heel.

    Because otherwise, there’s really nothing for it but to declare New York in rebellion against the soverign nation and take decisive military action against its leaders for sedition, in the manner of Lincoln in the Civil War.

    For in the shadow of a global pandemic the whiny call of ‘STATES RIGHTS’ (which, naturally, they never granted to flyover country when they were in power, of course) falls on hardened hearts and stopped ears. Teams of lawyers cannot contain deadly viruses. Authoritarian leaders that a critical mass of officials are afraid of at least have a chance.

    My Corona (a99d12)

  195. So nice to see this line:

    “Bottom line: we are screwed. Our only hope is to elect a person who is not corrupt. That’s a bad bet. The better bet is a serious and fundamental structural reform for which there is zero appetite.”

    Immediately followed by this line:

    “I had one fellow on Twitter say, basically, well, if you are going to remove Trump for this, why not remove FDR for court packing, Truman for his actions in the railroad strike, and on and on and on? To which my reaction is: right. Why not?”

    Pat really needs to learn to space out his WE’RE SCREWED, THERE’S NO HOPE, THE CORRUPTION WILL TAKE US ALL, oh, and yeah, things like this did happen before all the time, and I’d TOTALLY be for standing up and putting them down like tough guys back then, but THIS TIME WE’RE REALLY SCREWED GUYS, IT’S ALL OVER FOR LIBERTY NOW! Too close together and people can see the con!

    Pah-thetic.

    Johnny Counterfactual (8de00a)

  196. Nomad, 2 aliases in 5 minutes, seems like a lot of work.

    Colonel Klink (Ret) (5cde89)

  197. Now if only Hillary Clinton had been elected then we wouldn’t be screwed.

    Make America Ordered Again (afc191)

  198. Johnny,

    I don’t really see your point. Sometimes we all take politics too personally, but saying you agree that corruption in the 1930s is unacceptable is not bragging. It’s not being a tough guy. It’s just being consistent. Everything I’ve criticized Trump for, I’d criticize Obama or Hillary or Bush for.

    And that point is related to the idea that we do not have a realistic solution. I love to imagine reforms or improvements to what’s broken today. But all political reforms must be conveyed through the partisan framework of perpetuating power. Therefore they are all totally unrealistic.

    We could get more complicated about the downward slope, things getting worse, but forget that. The problem won’t be solved by voting for Bernie, Trump, or whoever else. The problem needs to be solved, but it won’t be. That’s alarming.

    It would be more pathetic to just whistle past it.

    Dustin (b8d6d1)

  199. Nomad, 2 aliases in 5 minutes, seems like a lot of work.

    Colonel Klink (Ret) (5cde89) — 2/15/2020 @ 7:03 pm

    I feel sorry for him. To feel you need to back your own arguments up. It’s a wild internet sometimes. Lot of sad situations manifesting.

    Dustin (b8d6d1)

  200. saying you agree that corruption in the 1930s is unacceptable

    He isn’t saying that. He’s saying that if you all are right and Trump is corrupt, it’s recoverable. He’s also implying there was worse corruption before, from at least two Democratic Presidents whom Patterico himself mentioned.

    Reagan still won. The inestimablly principled Romney still was able to run. And so on.

    As a hardly irrelevant aside, look at the economy now. Things could be a lot worse.

    Are their draftees in a foxhole at this very moment in a war costing half a million lives? Nope.

    We’ve got major problems, sure, but let’s not exagerrate.

    Make America Ordered Again (afc191)

  201. Hey MAOA, you on a VPN right now?
    Maybe if you spent less time fiddling with it you could have finished reading the sentence you tried to Fisk.

    Sheesh man.

    Dustin (b8d6d1)

  202. “We could get more complicated about the downward slope, things getting worse, but forget that. The problem won’t be solved by voting for Bernie, Trump, or whoever else. The problem needs to be solved, but it won’t be. That’s alarming.”

    If the ‘problem’ won’t be solved now, and was never solved before, then it’s not a ‘problem’, it’s an excuse. If you still think it’s a problem, then well, we’re about to enter global pandemic mode, and I’m very sorry to say that a philosophy of ‘anything that results in maximum freedom and maximum money making is good’ will run up against some hard biological limits, to say nothing of having to pay the social debt accrued from letting the most sociopathic Langley and Silicon Valley types free to do their thing for the past 50 years.

    Looking the other way when ‘authoritarians’ (at least you don’t say ‘fascist’ like the typical lefty’) take authority that is, in fact, badly needed, long overdue, and highly unlikely to be exercised in any competent fashion by the accountants, lawyers, and bureaucrats in Congress is both necessary and expected. There is no such thing as a power vacuum no matter how hard you try to declare it.

    Johnny Counterfactual (2499a4)

  203. 181. Dustin (b8d6d1) — 2/15/2020 @ 7:21 am

    In fact, everything Trump tried to do with Ukraine, bribery, and Biden, totally failed.

    It failed until Nancy Pelosi and Adam Schiff made an impeachment case about Biden.

    Then Biden’s poll ratings plummeted, as Republicans, or his defense lawyers, talked about him.

    And now the leading candidate will be Michael Bloomberg.

    https://www.realclearpolitics.com/epolls/2020/president/fl/florida_democratic_presidential_primary-6847.html

    https://www.realclearpolitics.com/epolls/latest_polls

    Florida Democratic Presidential Primary

    Florida Atlantic University Jan 9 – Jan 12: Biden 42, Bloomberg 7, Sanders 16, Klobuchar 6, Warren 10, Buttigieg 3, Steyer 2, Gabbard 1

    Biden +26

    St. Pete Polls Feb 12-13 : Biden 26, Bloomberg 27, Sanders 10, Klobuchar 9, Warren 5, Buttigieg 11, Steyer 1, Gabbard

    Bloomberg +1

    Note: Iin a Georgia Democratic primary poll, Biden is at +18 (32% to Sanders and Bloomberg, tied at 14%) But that poll has got about 25% undecided, compared to the Florida poll’s 11%

    Sammy Finkelman (8e96a4)

  204. 194.

    Trump’s DHS has singled out New York and prohibited the state from participating in Global Entry and four Trusted Traveler Programs, by withholding funds

    Governor Andrew Cuomo traveled to Washington and offered a compromise whereby Homeland Security would have access to the driver license database but only for purposes of the Trusted Traveler program. It was rejected.

    Also rejected earlier were such ideas as subpoenaing the entire DMV database.

    , who was arrested on the streets of New York in the 1920s for participating in a KKK march without a proper permit, refusing to rent to African Americans, Catholics and Jews.

    Fred Trump favored Jews. (He was of German origin)

    He’s threatening to withhold federal funds to a sovereign state in exchange for dropping investigations and prosecutions,

    I didn’t read that. The tweet doesn’t really mean that unless he’s also demanding New York Satate lower taxes before he’ll re-include New York State in the program. No, it’s politics.

    . (How do you think he was able to import his third wife?)

    Trump didn’t import his third wife. Other people did. He found her here.

    If he had wanted to import her to be his wife, it would have been easy and under a totally different provision of the law.

    Sammy Finkelman (8e96a4)

  205. Then Biden’s poll ratings plummeted, as Republicans, or his defense lawyers, talked about him.

    Streisand effect is a real mother. Good point. And if Sanders is nominated, it’s a huge win for Putin and Trump. I suspect the democrats are becoming a little more savvy about this and have thought about that. They probably would rather see how Biden handles this now, and they will probably keep Sanders from the candidacy. Call the democrats what you will, but democratic they are not.

    Dustin (b8d6d1)

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