Pages

Friday, December 28, 2018

A Message Of Hope

For Christians, Christmas is perennially a season of hope, so it seems an appropriate time of year to offer a message of hope to conservatives generally. In the comments to recent articles regarding the ongoing Russia Hoax a note of resignation and even dejection has been noticeable. And yet even as the assault on our constitutional order continues (and I use this phrase advisedly) there are, I believe, positive developments--even reasons for cautious good cheer.

The most obvious positive result is to be found in the results of the midterm elections. True, the GOP lost the House, yet on the positive side Paul Ryan--who played a key role in slowing down the House investigations into the Russia Hoax and even, as it turns out, the initial dissemination of the Clinton campaign's "dossier"--is gone. That alone is a positive development, as is the emergence of a more unified Republican caucus.

On the Senate side the news is even better. The GOP majority has been expanded--an historically unlikely achievement. Traitorous members have been discarded--McCain, Flake, Corker--and replaced by either more conservative new senators or new senators who owe their election to Trump's remarkable campaign effort and who will therefore be in his debt. This bodes well for confirmations, both of judges--including very possibly another seat on the Supreme Court--but also for perhaps the key cabinet position: the confirmation of a new Attorney General to replace the feckless Jeff Sessions.

Already, in that regard, we have good news. Matt Whitaker, the acting AG, has been cleared by an internal ethics review at DoJ to supervise Team Mueller. Of course, emboldened by their success with Sessions, the usual Democrat suspects brought forward the by now standard demands for recusal, citing Whitaker's past criticisms of Mueller. Whitaker, despite anonymous DoJ sources suggesting recusal out of "an abundance of caution," wisely and out of a strong sense of principle, refused to recuse. The notion that anyone who has paid attention to ongoing events in the public life of the nation and who has both an opinion and the gumption to express that opinion, should recuse himself from a position of authority is too bankrupt for serious consideration.

The stage is now set for Whitaker to play an active role in oversight of Team Mueller. If the Democrats have a problem with that, there is a ready solution. They can try their luck with Bill Barr by allowing his confirmation as AG to proceed expeditiously.


Barr is, as former AG Michael Mukasey has written, The Phony Attack on William Barr, "probably the best-qualified nominee for U.S. attorney general since Robert Jackson in 1940. ... Mr. Barr has already served as attorney general under George H.W. Bush, as well as assistant attorney general in charge of the Office of Legal Counsel [OLC], the authoritative voice within the Justice Department on issues of law throughout the government."

Beyond his obvious qualifications, Barr has demonstrated over the past few years a degree of principle and even courage in his concern for the public weal that recommend him for the position of Attorney General. For a lawyer of his accomplishments, at his stage in both his life and his career, to have remained silent would have been easy. Instead, he has spoken out forcefully regarding what he has been able to discern of the direction that Mueller has been leading his team of Clinton partisans. Even more notable in a way, Barr took the unusual step of embodying his views not in an op-ed piece but instead in a tightly reasoned 19 page memo to Rod Rosenstein and Stephen Engel (the Ass't AG currently in charge of OLC).

In this memo, written as recently as June, 2018, Barr takes Mueller to task for what Barr describes as a theory of obstruction of justice (regarding the firing of James Comey) that is "fatally misconceived." Mueller's theory, says Barr, is "premised on a novel and legally insupportable reading of the law." And he goes on to examine Mueller's theory in great detail, analyzing both the relevant statutory law as well as the past positions on obstruction that DoJ itself has taken. It's simply not possible in a blog to get into the full details of Barr's analysis (I offer some excerpts in the Addendum), but it's a measure of Barr's awareness of what's going on and what's at stake that he offers--in addition to dense textual analysis--such passages as this:

In today's world, Presidents are frequently accused of wrongdoing. Let us say that an outgoing administration -- say, an incumbent U.S. Attorney -- launches a[n] "investigation" of an incoming President. The new President knows it is bogus, is being conducted by political opponents, and is damaging his ability to establish his new Administration and to address urgent matters on behalf of the Nation. It would neither be "corrupt" nor a crime for the new President to terminate the matter and leave any further investigation to Congress. There is no legal principle that would insulate the matter from the President's supervisory authority and mandate that he passively submit while a bogus investigation runs its course.
Mueller should get on with the task at hand and reach a conclusion on collusion. In the meantime, pursuing a novel obstruction theory against the President is not only premature but -- because it forces resolution of numerous constitutional issues -- grossly irresponsible.

I urge all readers to at least peruse the Addendum, even if you may feel that the full 19 pages of legal analysis are beyond you, in order to get the measure of the type of mind Barr possesses. He is not simply a career prosecutor like Mueller (who has repeatedly demonstrated abysmal investigative instincts)--he is a man with a keen sense of the importance of our constitution and who has thought deeply on it.

Barr's sense of public duty and principle as well as his courage in expressing views that are bound to be unpopular with the Washington establishment that knows him well, speaks well of his character. Predictably, the release of this memo have been greeted with howls of outrage and calls for his preemptive recusal from all matters concerning Team Mueller. I'm not much of one for predictions, but in this case I'll go out on a limb a bit. I predict that Barr will refuse to offer any sort of preemptive pledge of recusal, and I further predict that, when confirmed, he will not recuse himself but will instead examine Team Mueller's legal theories and their prosecutorial practices with a critical eye focused on justice.

Those qualities of principle, sense of public duty, and courage were on display late last year, as noted by the New York Times, when the paper questioned former AGs regarding Trump's continued calls for investigation of Hillary Clinton:

Of 10 former attorneys general contacted Tuesday, only one responded to a question about what they would do in Mr. Sessions’s situation. 
“There is nothing inherently wrong about a president calling for an investigation,” said William P. Barr, who ran the Justice Department under President George Bush. “Although an investigation shouldn’t be launched just because a president wants it, the ultimate question is whether the matter warrants investigation.” 
Mr. Barr said he sees more basis for investigating the uranium deal than any supposed collusion between Mr. Trump and Russia. “To the extent it is not pursuing these matters, the department is abdicating its responsibility,” he said.

Regarding the utterly predictable and unprincipled calls for Barr's recusal or rejection as AG, former AG Mukasey stated, with a touch of irony:

The logical implication of opposing Mr. Barr’s appointment or seeking his recusal because he has opined on a matter of substantial public concern is that the only people suitable for public office are those who are ignorant of public issues or indifferent to them. That in itself should silence his critics.

All this, I submit, offers reason for hope.

ADDENDUM: Excerpts from Barr's Memorandum. Each paragraph below should be considered as disconnected from any other passage in the 19 page memorandum.


... if a DOJ investigation is going to take down a democratically-elected President, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime -- not a debatable one. It is time to travel well-worn paths; not to veer into novel, unsettled or contested areas of the law; and not to indulge the fancies by overly-zealous prosecutors.

Mueller's premise that, whenever an investigation touches on the President's own conduct, it is inherently "corrupt" under section 1512 for the President to influence that matter is insupportable. In granting plenary law enforcement powers to the President, the Constitution places no such limit on the President's supervisory authority. Moreover, such a limitation cannot be reconciled with the Department's longstanding position that the "conflict of interest" laws do not, and cannot, apply to the President, since to apply them would impermissibly "disempower" the President from supervising a class of cases that the Constitution grants him the authority to supervise.

The crux of Mueller's position is that, whenever the President exercises any of these discretionary powers ["the power of appointment, removal, and pardon"] and thereby "influences" a proceeding, he has completed the actus reus [i.e., the "guilty act"] of the crime of obstruction. To establish guilt, all that remains is evaluation of the President's state of mind to divine whether he acted with a "corrupt" motive.

... Mueller seems to be claiming that the obstruction statue effectively walls off the President from exercising Constitutional powers over cases in which his own conduct is being scrutinized. This premise is clearly wrong constitutionally.

The prospect of criminal liability based solely on the official's state of mind, coupled with the indefinite standards of "improper motive" and "obstruction," would cast a pall over a wide range of Executive decision-making, chill the exercise of discretion, and expose to intrusive and free-ranging examination of the President's (and his subordinate's) subjective state of mind in exercising that discretion.

Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch. As such, he is the sole repository of all Executive powers conferred by the Constitution.

Because the President alone constitutes the Executive branch, the President cannot "recuse" himself. ... the President cannot take a holiday from his responsibilities.

The Framers' idea was that, by placing all discretionary law enforcement authority in the hands of a single "Chief Magistrate" elected by the People, and by making him politically accountable for all exercises of that discretion by himself or his agents, they were providing the best way of ensuring the "faithful exercise" of these powers. ... Thus, under the Framers' plan, the determination whether the President is making decisions based on "improper" motives or whether he is "faithfully" discharging his responsibilities is left to the People, through the election process, and the Congress, through the Impeachment process.

For that reason, the President's exercise of supervisory authority over such a case ["dealing with his own interests"] does not amount to "corruption." It may be in some cases politically unwise; but it is not a crime.

In today's world, Presidents are frequently accused of wrongdoing. Let us say that an outgoing administration -- say, an incumbent U.S. Attorney -- launches a[n] "investigation" of an incoming President. The new President knows it is bogus, is being conducted by political opponents, and is damaging his ability to establish his new Administration and to address urgent matters on behalf of the Nation. It would neither be "corrupt" nor a crime for the new President to terminate the matter and leave any further investigation to Congress. There is no legal principle that would insulate the matter from the President's supervisory authority and mandate that he passively submit while a bogus investigation runs its course.

Mueller should get on with the task at hand and reach a conclusion on collusion. In the meantime, pursuing a novel obstruction theory against the President is not only premature but -- because it forces resolution of numerous constitutional issues -- grossly irresponsible.








6 comments:

  1. Thanks for your message of hope.

    The US Constitution gives us a right against unreasonable searches.

    Ultimately the US Department of Justice and the FBI will be compelled to explain their investigation of four US citizens -- Michael Flynn, Paul Manafort, George Papadopoulos and Carter Page -- for forming a criminal enterprise to collude with Russia to meddle in our 2016 elections.

    * Exactly who in DOJ/FBI decided that this investigation's searches of those four citizens were reasonable?

    * What are those DOJ/FBI officials' names and positions?

    * When and how did those DOJ/FBI officials decide to search those four citizens' communications?

    * What did those DOJ/FBI officials do with the communications that they seized from those four citizens?

    Instead of simply telling the story to the US public, disciplining the culprits, improving procedures and moving on, DOJ/FBI continue to drag their feet and stonewall. DOJ/FBI continue to discredit themselves and to poison US politics thoroughly.

    During the past decades, the DOJ/FBI have been supported and defended loyally by Republicans. Apparently, DOJ/FBI have decided to keep pissing on the Republicans and to look to the Democrats to become their future political patrons.

    Stupidity on stilts.

    I hope that Mark Whitaker and Bill Barr will make the DOJ/FBI cease their continuing sedition against the elected US President and his Republican Party. However, we have been disappointed often and persistently during the recent years. We have learned to expect the DOJ/FBI to continue their trickery and stonewalling.

    ReplyDelete
  2. Those are absolutely the right questions, and can only be answered by reading the case files--the FISA applications aren't nearly enough. For starters, we need to see the opening ECs. Trump's declass needs to be put into effect and then renewed on steroids. This is the biggest scandal in US political history bar none. Half measures won't be enough if we're to remain a nation of laws.

    ReplyDelete
  3. I hope there will be dramatic disclosures in 2019, but I am not optimistic. Both the Democrats and Republicans are gearing up for the next election. This explains, I suspect, the selection of Bill Barr over, say, John Ratcliffe, as AG. I think Trump just wants to end the Mueller investigation, and hopefully escape impeachment. Barr's non-confrontational approach, while still protective of the President, recommends him for this task. In other words, Trump is less interested in dramatic disclosures than in putting this all in the past. Unfortunately, the Democrats will be too tempted to impeach Trump, if for no other reason than they consider him too formidable a candidate in 2020. This could in turn be a bad move for the Dems, since Trump will survive a Senate trial and may emerge an even more popular President. I would love to see him appoint another Supreme Court justice.

    ReplyDelete
  4. Steve, yes, obviously Dems and GOPers are gearing up for 2020--and have been since 2016. While I can't claim to predict the future and may be wrong, I think Trump is saving disclosures for when the time is right for him. That will by the nature of things mean "closer to the election," since Mueller will certainly attempt to drag his hoax investigation out as long as possible. Trump, personally, has little control over that. OTOH, dramatic disclosures may represent one of Trump's best chances for reelection--IMO rope-a-dope ("Trump just wants to end the Mueller investigation, and hopefully escape impeachment") is 1) likely a losing strategy and 2) not in Trump's nature.

    OTOH, Trump is able to set the field of battle to an extent, and that extent is controlled to a great degree by his hiring and appointments. If there's one thing he's learned, it's that legal rope-a-dope (the initial accommodationist approach of his early attorneys) is a loser. He has now opted for legal pit bulls with long years of experience and success: Giuliani and Flood. That does not suggest legal rope-a-dope to me, nor does the public face of his legal team, Giuliani, reflect such an approach.

    Another important area over which Trump has partial control is his appointment power. "Partial," because the timing is controlled by the Senate. Trump was required to wait out Kavanaugh and the Midterms before he could dump Sessions. But the appointment of Whitaker was, IMO, telling. It was NOT calculated to placate the Dems in any way. Nor is the appointment of Barr calculated to placate Dems.

    Again, I can't claim to be omniscient, but I don't understand why you state that Barr is "non-confrontational." I would say your characterization is very wide of the mark. Barr's memo was, IMO, very aggressive, both in tactics and in political context--Barr had to know that Mueller would be reading that memo, and Barr pulled no legal punches. And now he's seeking to become Mueller's boss. Indeed, Mirengoff at Powerline worked under Barr in the private sector and describes the Barr he knew as "very aggressive." He could hardly be otherwise, since his time in government service at DoJ was a period of concerted Dem attacks on the Executive as exercised by GOP presidents, and Barr adopted a hard line, NOT an accommodationist, interpretation of Executive powers. IOW, his legal experience was formed in the crucible of legal combat at a very high level with specific experience in exactly the issues now facing Trump: executive privileges, prerogatives, authorities.

    Barr's nomination suggests he is seeking to return to that same battle. Certainly his memo indicates a taste for legal combat. Nothing I'm saying should be taken as in any way belittling Ratcliffe, who certainly has a more impressive legal career record than other former prosecutors who have entered politics. However, Barr's experience is far more directed toward the relevant issues and has been conducted at a much higher level. Further, he will have a much better understanding of how Main Justice works, thus less time wasted on an administrative learning curve.

    I may prove wrong, but in the meantime I'd be interested in where you got the idea that Barr is "non-confrontational." I say that especially in light of CTH's frankly foolish post of last night.

    ReplyDelete
  5. I didn't see the CTH post, and I certainly don't mean to belittle Barr, who clearly has much to recommend him. My point is that while Trump and Giuliani are aggressive in public statements, they will settle for a report to counter Mueller's report. Asked if he would favor a second special counsel, Giuliani responded: "I would never say never, but..." And Barr will implement this approach. All I meant to suggest, although I worded it poorly, is that Barr, despite his memo, is not seen as provocative in the sense that someone who has been pushing insistently for a second special counsel and impugning Mueller's integrity might be. Mueller can work with Barr, and visa versa. This is what Trump, with an eye to 2020, wants. Whitaker was put there as acting AG because Trump was concerned about Democratic efforts to get his taxes, not to investigate Mueller and his partisan crew. To this day, I don't think that Trump knows what to do about declassifying those documents. He is holding them for a rainy day, should everything go
    south.

    ReplyDelete
  6. Steve, thanks for your response. I think you're misunderstanding Giuliani and conservative legal theory generally. The reason Giuliani and other conservative legal types are not howling for another SC is because they regard the SC as unconstitutional--as do I. It's called principled conservatism. DoJ has its own resources--including the IG--to do any investigation that's called for. The only reason the IG hasn't done more is Rosenstein, who is running interference for Mueller. That could change with Rosenstein no longer supervising Mueller and the IG. Maybe under Whitaker, but hopefully for sure under Barr. Do you think Barr was following the Flynn sentencing and the surrounding revelations re Mueller? I do, and I doubt he was positively impressed.

    "Barr, despite his memo, is not seen as provocative in the sense that someone who has been pushing insistently for a second special counsel ...

    While Barr doesn't address the concept of Special Counsels per se in his memo, I'm pretty sure that he would have serious constitutional issues with the entire idea of assigning a prosecutor to investigate a person, rather than a crime. In this case, of course, a crime is alleged--although Rosenstein didn't see fit to reveal it to the public--but in that case I'll bet Barr will make it a priority to examine the Probable Cause, especially in light of new revelations about the dossier. He states in his memo that he doesn't know all the facts. I think that means that as AG he will make it his top priority to become familiar with all the facts, and I mean ALL THE FACTS. To see whether they really are facts, or not.

    "not seen as ... impugning Mueller's integrity ..."

    Really? You don't think Barr is impugning Mueller's integrity? I paraphrase only in the sense of condensing:

    "investigating based on a debatable crime"

    "veering into novel, unsettled or contested areas of the law"

    "indulging in the fancies of overly-zealous prosecutors"

    "Mueller's premise is insupportable"

    "This premise is clearly wrong constitutionally"

    "Mueller should get on with the task at hand. Pursuing a novel obstruction theory against the President is not only premature but grossly irresponsible."

    I guarantee that if you as one lawyer said those things to or about me as another lawyer I would definitely regard that as impugning my intelligence, my integrity, my honesty, my professional ethics. How would you feel about getting a new supervisor with a lot of prestige in your field who you knew thought those things about you? And not only thought those things but had put them in writing and given them to your then current superiors? Laugh it off? I don't think so.

    "To this day, I don't think that Trump knows what to do about declassifying those documents. He is holding them for a rainy day, should everything go south."

    But not just any rainy day. Trump was quite explicit in saying why he postponed declassing. He explicitly said it was on the advice of his lawyers, i.e., it was a tactical decision. He also said that in principle he wants more rather than less and sooner rather than later.

    ReplyDelete