Briefly Noted: Turley's Take On The DoJ Trump-No-Obstruction Memo

This is ancient history by now, but Professor Turley's interpretation is that the OLC memo pretty much blows then AG Barr's critics away. His critics, of course, were the usual suspects of the progressive Legal Left. Moonbats like Larry Tribe. This, of course, was one of the good things that Barr did, and you can find the full Turley article here:

Newly Released OLC Memo Shows Staff Lawyers Found No Basis For Obstruction Charges In Mueller Report

This is ancient history in a sense, but will hamper the continuing jihad against Trump. It confirms the poor view of Mueller and the faux impeachers. For our purposes I'll just quote from Turley's concluding paragraphs:

The controversy of Barr’s summary largely focused on a couple lines where he said that the underlying facts from by Mueller would not satisfy the elements of the crime of obstruction. It turns out that staff had made that conclusion as did some of us from existing and controlling case law. Moreover, Barr stated that the reason for the delay in the release was the removal of any grand jury material as required by federal law.

The released portions does not contradict Barr’s claim that he could not simply release a two-volume, 450-page report. One can fairly criticize aspects of that summary but the delay of the release of the report (and need for a summary) falls more squarely on Mueller. Past hearings established that Barr and Rosenstein told Mueller that they wanted his staff to flag grand jury material because Barr wanted to release the redacted report rather than a summary.  Mueller appears to have simply ignored that instruction from his superiors. As a result, a full review had to be performed with Mueller’s staff to remove grand jury material, which is mandatory under federal rules.  If Mueller had flagged and redacted the grand jury material, the redacted report could have been released without much delay as Barr preferred.

The memo also undermines the claims raised in the first impeachment of Donald Trump. I testified in that hearing and disagreed with my three co-witnesses (Professors Michael Gerhardt, Pamela Karlan, and Noah Feldman) who insisted that Trump had committed obstruction of justice. They were not alone. Democrats and the media paraded a letter from over 450 prosecutors who declared unequivocally that “Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”  The actual prosecutors at Main Justice found that not only would the allegations not meet the standard for obstruction of justice but that it would still be the case even if Trump was not the President of the United States.  The contrast shows the danger of such gotcha letters. With thousands of professors and prosecutors, it is not particularly difficult to get hundreds of signatories to support one side or another in a controversy. The Justice Department does not prosecute by plebiscite and this is why.

Well, one may be allowed to dispute Turley's blanket assertion in his final sentence as expressing an ideal. I think we all know that that's certainly not the invariable reality--if by "plebiscite" we understand "public opinion" or "political pressure."

Not From The Onion

Per Jonathan Turley:

Jon Karl just asked McEnany where in the Constitution does the Trump have the right to send law enforcement into these cities against the will of the local officials. It would start with Article II.

Federal enforcement is not "by invitation only."  The use of federal agents to protect federal property or enforce federal law does not depend on local permission. There may be legitimate questions on how that authority is used but not the right to use the authority.

If you want to read Turley's longer discussion of related issues--including actions Trump is not going to take in the current circumstances--here.

Trump: ANTIFA To Be Designated Terrorist Organization

Very smart move by Trump--as you'd expect:

 

Donald J. Trump

@realDonaldTrump

The United States of America will be designating ANTIFA as a Terrorist Organization.

11:23 AM · May 31, 2020

The Dems have put themselves in the position of having to oppose everything Trump does or says. Now they find themselves having to support terrorists. Yes, they'll try to distinguish between peaceful protestors and their violent base. I predict it's not gonna work. Americans are smart enough to see through that.

First they shut the Blue cities down, now their base is trying to burn the Blue cities down before they can even reopen. And there's an election coming up. See a problem with that scenario?

Wanna bet that Barr and Trump have a well coordinated strategy?

As the riots heated up on Saturday, President Trump tweeted that the culprits were “Antifa and the Radical Left.” Attorney General William Barr similarly pointed out that the rioters and looters were engaging in “Antifa-like tactics.”

Third Win In Two Days For Trump

The first win came yesterday with the DoJ moving to dismiss the hoax prosecution against Michael Flynn. Yes--that's a victory not just for Flynn and the rule of law, but for Trump, too.

The second win, of course, was the release by Adam Schiff, under duress from Rick Grenell the acting DNI, of 53 transcrips of witness interviews before the House Intelligence Committee--all dealing with various aspects of the Russia Hoax. Expect a cascade of new revelations. Big win for Trump.

And now today John Solomon reports:

SCOTUS grants Trump administration's request to shield Mueller grand jury materials

DOJ lawyers argued that breaching grand jury secrecy would negatively impact the cooperation of future witnesses

To me this was always a no-brainer.

Note: This is a temporary order, but the Trump administration intends to file a full appeal.

UPDATED: Comey Tickles The Wire

That's the title of a rather smart article by former prosecutor George Parry.

Suppose you're part of a team of investigators and prosecutors targeting a major subject. You've had a "wiretap" on an associate of your subject--we'll call the subject "Donald" and the wire a "FISA"--since, oh, let's say since late October, 2016. Your FISA has turned up NOTHING. Zero, zilch, nada. It's now January, 2017, and Donald is scheduled to enter into a position of considerable power. What do you do?

You "tickle the wire." In other words, you create some activity that you hope might cause Donald to talk indiscretely--maybe to an informant, maybe over the phone, maybe in some other type of electronic communication.

In this case you send a weasel into the Donald's den. We'll call that weasel, "Jim." His job is to stir things up by telling Donald that people who just might know are saying outrageous things about him. The hope is that Donald will speak indiscretely to Jim or maybe communicate indiscretely. Then, just for good measure, you leak the whole thing to a friendly "news" network--your co-conspirator. We'll call that network "CNN."

And nothing happens. NOTHING. Except that a couple of months later Donald claims he was being wiretapped.

Question: What are the chances that Donald really was being wiretapped and that Jim was trying to "tickle the wire"?

UPDATED: Germany Again--And Brexit?

Not too long ago, in Germania Delenda Est, we talked about the centrality of Germany to Trump's goals and of his determination to break Germany's hold over Europe. This evening sundance has two posts on economic matters, the second of which focuses on Germany: German Industrial Orders Plunge – The Surface Reason is China – The Underneath Reason is Trump. It seems that for all the Establishment's desperate efforts to talk the US economy into a recession, Trump continues on course and winning (sundance's other post offers excellent background to this: President Obama Weaponized Government – Phase Two Was Positioned to Monetize Government).

In the first post sundance points to a the bad news for Germany in a Reuters article--Recession risks rise for Germany as industrial orders plunge:

But then he goes on to ask: Why? And it's not exactly rocket science. Trump has forced China into a currency devaluation, and that has had serious consequences for a major economy like Germany's that's heavily export dependent:

China has: (1) less income; and (2) less value within their own currency. 

Where does this dynamic show up?…. Anytime China is going to buy something. 

China’s currency devaluation makes their exports cheaper; however, at the same time it makes any of their imports more expensive.  As a consequence China buys less… and that now exhibits in lower purchases of German stuff.

Next question, Will this translate into Trump leverage to push Brexit through? I won't pretend to be able to read Trump's mind, but nothing would surprise me less. Mike Pence--remember, the Vice President?--is in London telling everyone that the US is ready, willing, and able to do a trade deal with a post-Brexit UK. I don't believe any of this is happening in a vacuum.

UPDATE: For those who are fascinated by the Brexit "crisis"--or whatever it is--currently gripping UK news, here's a fun article: There will still be an election in the UK, and Brexit will still happen.

UPDATED: Germania Delenda Est

Yes, for you Latinists, I know the original, re Carthage, runs a bit differently--but this will do.

Everybody's talking about the Trade War with China, but that's only half of the story. Just like WW2, American is engaged in a Two Ocean War. If you listen to the news about how China's economy is tanking under Trump's pressure, you may also hear a second story line: Germany's economy is also struggling to stay above water.

Germany first became a problem for Europe and the world in 1870, although I suppose you could trace it all back to the French Revolution. In a sense you could say that there's been a Great European War ongoing since 1870, and that WW1 and WW2 were simply inflection points. With the end of the Cold War and the reunification of Germany it looked like the German Empire had finally and definitively won that war--subjugating all of Europe, even Britain, to its iron will and its economic engine. Our post Cold War presidents acquiesced to the state of affairs, and turned the other cheek to German aggression.

Then came Trump.

Three Good Reads: The Mueller Circus; Trump Picks Pence

The first article is Michael Goodwin's Dems take desperate final shot at Trump with Mueller testimony. You won't be surprised by a thing Goodwin says, but he says it well--captures the desperation and futility of the whole circus.

The second article fascinated me in a totally different way. It's by Tim Alberta, who is the chief political correspondent at Politico, so if you're guessing that he's not a Trump fan, then you're on to something. And that's part of what makes the article so fascinating.

The article is You Crossed The Rubicon ... There's No Going Back": Karl Rove, Kellyanne Conway, And The Odd Couple Marriage Between Mike Pence And Donald Trump. It's a chapter from the just released American Carnage: On the Front Lines of the Republican Civil War and the Rise of President Trump. Of course Alberta has his own slant, his own agenda, and of course there are repeated efforts at snark, attempts to depict Trump as the buffoonish caricature we're all familiar with. But what keeps coming through the portrait of Trump the person, and especially the positive qualities that suit him as President. His relentless inquisitiveness, his willingness to accept being challenged, his impatience with the BS factor. And his basic humanity and likeability.

Here's the blurb about the overall theme of the book, from which you can readily grasp the author's slant:

Only by viewing Trump as the culmination of a decade-long civil war inside the GOP—and of the parallel sense of cultural, socioeconomic, and technological disruption during that period—can we appreciate how he won the White House and consider the fundamental questions at the center of America’s current turmoil. How did a party once obsessed with national insolvency come to champion trillion-dollar deficits? How did the party of compassionate conservatism become the party of Muslim bans and family separation? How did the party of family values elect a thrice-married philanderer? And, most important, how long can such a party survive?

This chapter doesn't get into much of that, but here's one sample from Kellyanne Conway:

“The Republican Party was always looking for the next Ronald Reagan, but it kept picking Bushes,” Conway says.

It's longish but very interesting. Highly recommended.

Heh, the third is an addon:

Pelosi Can’t Disown Her Political Progeny

The squad was weaned on Pelosi’s mother’s milk of identity politics, bad faith, and fear-mongering. Now, her political offspring make up the face of a party defined by race and gender with a hearty strain of anti-Americanism, animated by name-calling and threats. Diversity, not merit, rules the day. Capitalism is evil, socialism is just. Global warming, not terrorism, is the existential threat to humanity. We are citizens of the world, not to one nation. 

Bullying is a substitute for persuasion. Critics are silenced by smears, not by facts. Imaginary systemic injustices excuse any bad behavior; indignation supersedes hard work. Seniority is a nice word for white patriarchy. Respect flows only one way. 

The squad’s political hubris was a generation in the making, during which time Pelosi was a Democratic Party leader. Aside from her relatively tepid criticism of late, Pelosi, like a bad parent, has mostly accommodated the squad’s tantrums and antics since Election Day. As I wrote in January, it was obvious that Ocasio-Cortez would be the shadow speaker as Pelosi sucked up to her unruly freshman caucus early on.

What Good Is The Supreme Court?

Aren't Supreme Court justices supposed to be highly credentialed legal scholars--well, at least nowadays? Don't they have a small army of law clerks, all graduates of from the top tier of their class at the top law schools? And, in the case of Brett Kavanaugh, isn't every single one of those clerks the smartest female available for the job?

A top professor at Yale Law School who strongly endorsed supreme court nominee Brett Kavanaugh as a “mentor to women” privately told a group of law students last year that it was “not an accident” that Kavanaugh’s female law clerks all “looked like models” and would provide advice to students about their physical appearance if they wanted to work for him, the Guardian has learned.

Amy Chua, a Yale professor who wrote a bestselling book on parenting called Battle Hymn of the Tiger Mother, was known for instructing female law students who were preparing for interviews with Kavanaugh on ways they could dress to exude a “model-like” femininity to help them win a post in Kavanaugh’s chambers, according to sources.

And you wonder why going to Yale beats out other schools? When you have Amy Chua as adviser, the world's your oyster, if you look like a model.

But how is it that the SCOTUS, led by no less than the Chief Justice himself, came up with such an absurd ruling as the recent Department of Commerce v. New York case in which they decided that it was OK to engage in mind reading regarding an act that was perfectly legal? Shades of the Mueller/Weissmann obstruction theory! I'm very much inclined to agree with Joe DiGenova's explanation--that the case had nothing to do with the law and was simply about John Roberts wanting to poke a finger in Donald Trump's eye. Which says a lot about the passive-aggressive mindset of of men who have spent their entire lives single mindedly pursuing a sinecure in which you get to wear a black robe.

But, now come David B. Rivkin Jr. and Gilson B. Gray to explain that there's a perfectly good way for Trump to give Roberts the kick in the pants he deserves while simultaneously occupying the high ground of constitutional governance: How to Put Citizenship Back in the Census--The 14th Amendment gives the Trump administration the justification it needs.

Here's what the 14th Amendment says:

Draining The Swamp

This morning Scott Johnson at Powerline linked to a review of Unmasking the Administrative State: The Crisis of American Politics in the Twenty-First Century, by John Marini. The review is by Michael Anton, Draining the Swamp:

Michael Anton (born 1970) is an American former senior national security official in the Trump administration. He is best known for his pseudonymous essays written during the 2016 presidential campaign in which he supported Donald Trump and collaborated on the pro-Trump Journal of American Greatness blog. Anton was named Deputy Assistant to the President for Strategic Communications on the United States National Security Council. [Read More]

It's a long review, and one that may begin a bit slowly for those who aren't up on political philosophy, but it's hard to praise it enough for the insights into, well, The Crisis of American Politics in the Twenty-First Century. In other words, the big picture of what the Russia Hoax is really all about and how it relates to American history--and America's future. I highly recommend Anton's review for its portrayal of the Russia Hoax and the monumental effort by the Deep State to reject Trump like an invasive foreign body. In particular, his application of Marini's thinking to a comparison between Nixon/Watergate and Trump/Russia Hoax is fascinating. Do yourself a favor and read the whole thing. Here are some snippets:

John Dowd Speaks Out

ABC News has done a bang up interview with former Trump attorney John Dowd. For anyone who doesn't know who John Dowd is, read his Wikipedia page: John Dowd. Big league player, attorney, big time experience both in the law and in Washington.

I've edited and condensed the transcript of the interview, boiled it down. Read the original for all the detail and the full context, uncondensed, listen to the audio. But it really speaks pretty much for itself. I've bolded what I thought jumps out. Here goes:


ABC NEWS' KYRA PHILLIPS: So, John, word is the Mueller report is going to drop within the next couple of weeks.

JOHN DOWD: I don't think there'll be a report. The rules of the department say, no report.

ABC NEWS' CHRIS VLASTO: So you don't think the public's gonna see anything. You think it's $40 million. Mueller investigated it. And that's it.

DOWD: The idea that you would take that information and make it public, you know, violates the whole concept of the grand jury. What's the grand jury for? To protect the innocent. ... Does that ever get reported? No.

PHILLIPS: Do you respect what Mueller is doing? I know you know Mueller well.

DOWD: Well, I respected it in the beginning. My style is I always trust the other side, until I didn't. In my opinion, on March 5th, we were done. He had everything. He said he had everything. He told me that no one had lied. He told me they had every document we asked for. He told me that it was nothing more. He told me that the president was not a target. That is, he did not have any exposure, that he was a witness subject, which is perfectly normal for someone's conduct you're looking at, but they don't have exposure. What people don't understand about the president is you have too much information in your life. I mean, the amount of information that he intakes every day, gets prepared for, is staggering. And in my questioning him or talking to him--you know, first question, easy. Second question, easy. Third question, he wasn't sure. And he doesn't like being unsure. So he'll guess. There's your trap, right there. It's not whether he lies or not.