As will be readily apparent, the final paragraph of my recent post was left unfinished when I somehow posted it by mistake. Letitia James has suggested her indictments and all other indictments of Trump should be put on the shelf until the documents case has been decided. The Georgia attorney weighing election-related charges against Trump hasn't signed on to this strategy, but she probably will come around, at least to the extent of slow-walking her indictment if she makes one. There is no legal reasons to pause these proceedings, for there would be different attorneys, different judges and different venues for the cases. Ms. James, almost certainly with support from the Democratic establishment, wants to keep the spotlight on the special counsel indictment, without the distractions of a yawn-inducing business case in New York or what promises to be a weak case in Georgia. Jim Dueholm
I agree with Bill's conclusion, but will not till a field that, as Bill says, is well plowed. Both sides of the indict-don't indict debate have been aired again and again. But the details of the indictment, the unusual request of the special counsel for a speedy trial, and the third-party response to the indictment, provide further evidence a sleeping dog should have been left to his slumber.
The indictment is detailed, full of understated sound and fury, but it appears possible if not likely that, while the evidence may show careless exposure of sensitive material, it's far less likely it will show danger to national security, in which case the evidence would show there, but no there there.
The case is fraught with the likelihood of pre-trial motions and the need to vet jurors and handle evidence in a way that doesn't expose sensitive information. I think the DOJ rules ban proceedings within 60 days of an election that could be impacted by the proceeding, which means the special counsel proceedings might have to be put on hold if the case hasn't gone to trial before, say, September 1, 2024. In this context the special counsel's unusual if not unprecedented request for a speedy trial suggests he wants to make short shrift of the pre-trial motions, vet the evidence to make sure sensitive information isn't given to the jury, vet jurors in an extremely sensitive case, and get to trial by that magic date. He may also want to get to trial before continuing lack of progress in the investigations against Hunter and Joe Biden make the disparate treatment of Biden and Trump even more glaring than it already is. In context the special counsel's apparent quest smacks more of politics than law.
The response of Letitia James, the New York Attorney General, to the indictment suggests the Democratic establishment does want a rush to trial in the documents case. She is pursing criminal charges against Trump relating to tax, bank fraud and other
One quibble. You say the "documents that were not his and to which he had no right after he left office." Yet, in her ruling in the Clinton case involving Judicial Watch, Judge Amy Berman Jackson said that the President decides what are personal documents and what are not "at his sole discretion" and the National Archivist cannot second-guess him - nor does the Archivist have any power to seize the documents, let alone do it on behalf of a FOIA request.
Because the Special Prosector did not charge Trump under the PRA, I'm guessing he knows that this precedent would be a problem for him.
I don't think you're missing anything, but I do think District Judge Jackson was wrong and that her view of unlimited and unprincipled Presidential power in that regard is going to get tanked by the higher courts.
Personally, at this moment, I am much more concerned about the unlimited and unprincipled power of the administrative state (DoJ, the IC's, the IRS, etc.) than I am of any current or former President. The agencies stonewall Congressional oversight routinely, and I find it amusing that the DoJ is upset with Trump for "playing games" with them on a subpoena - the same DoJ that resisted the subpoena for the 1023 document on Biden.
Seems to me these kinds of disputes should just be worked out between the parties, as they usually are, not brought to conclusion with a SWAT team.
The DOJ already tried to work it out. In fact, they bent over backwards to accommodate Trump, yet he still wouldn’t give up the documents. The SWAT team was the last resort. Knowing Trump’s mind, he saw it as a win-win: either the DOJ would give up and let him keep the documents to sell to the highest bidder, OR he could force them into raiding his tacky hotel, and then fundraise off his usual “Poor me, I’m so persecuted!” schtick. Either way, he profited.
Most people don’t think like this, but most people aren’t sociopaths either.
If I were Merritt Garland, I would not have authorized the mishandling sensitive documents charges, which rightly or wrongly sound like double standards to much of the country, but I would have authorized the obstruction of justice charges. Maybe it's just me, but they strike me as uniquely awful - intentionally hiding subpoenaed documents so that his lawyer would file an unwittingly false affidavit with the grand jury about Trump not possessing such documents. I don't see any difference between that and Nixon erasing or instructing his secretary to erase 15 minutes of audiotape.
-- "Serious question though; do you really think that Biden ordered this prosecution?" No. The "Biden Administration" isn't Biden himself. I think it highly likely that Garland checked off on it and at least notified the White House.
-- "Is this Biden’s call or Merrick Garland’s? If it’s Merrick Garland’s call, what would you have had Biden do to stop this?" Biden could have issued a preemptive pardon a la' Ford with Nixon. That would have made a prosecution pointless. But there was nothing in it for Biden to do anything remotely like that so it wasn't going to happen or even get considered.
-- "Should he have told Garland not to appoint a federal prosecutor?" No. As you suggest, the White House should stay out of specific prosecution decisions. I'm pretty sure that Comey turned decisively against Trump when Trump asked him to go easy on Flynn. That's something the President absolutely cannot do, and it would have blown off the top of Comey's head.
-- " Biden can’t actually order Garland not to prosecute Trump, right?" Technically he can, on pain of firing Garland. But this kind of thing should never happen. If the White House had tried to push me in that way when I was at DOJ, I would have told it to get lost -- either that or I would have quit on the spot with a blistering statement to the press.
-- "As a retired lawyer to a former federal prosecutor, would it appropriate for Biden to put his thumb on the scale here in any event? I would have preferred for this prosecution not to have gone forward, but sometimes the law is an ass, as they say."
Garland was in a tough position. There is at the minimum a credible argument that Trump should face the music. He made his own bed and his behavior was both dishonest and illegal. But in my view, and for the reasons I've explained, the greater wisdom for the Republic was to stand down. Still, once you've appointed a Special Counsel, then, unless his decision is clearly unreasonable -- which this one wasn't -- there's a strong argument that the AG should stand aside.
As I said in my title, there are no good options here, because Trump is lawless and DOJ's behavior has forfeited public trust. Ugh. I'm glad I'm outta there.
I’m afraid a pardon wouldn’t work. To accept a pardon means acknowledging wrongdoing, and Trump thinks everything he’s ever done is perfect. I don’t know whether that’s the result of his vastly over privileged life surrounded by flatterers, or mental illness, or dementia, or what, but we can’t toss the rule of law out the window just to humor a mentally sick man.
Where do you get the notion that the President cannot tell prosecutors what to do? Prosecutors wield immense power, and in a democracy they are accountable to elected officials. Should the President not interfere in military matters? What about environmental protection policies?
"Where do you get the notion that the President cannot tell prosecutors what to do?"
From 25 years in, at various times, the White House, DOJ, and the US Attorney's Office. But to answer (more summarily than it needs) the nub of your question: Mixing law (a body of neutral principles) with politics (which is anything but neutral) is a really bad idea, because the corruption of law is the sure result.
Of course I never said that the President CANNOT tell subordinates at DOJ what to do; I said he shouldn't. The reason he shouldn't is easy to see, and you already put your finger on it. Prosecutors wield immense power. You can severely complicate someone's life just by indicting him. If indictments are to come about because they are politically convenient to the party in power, rather than because the evidence fairly examined shows probable cause to believe that a crime has been committed, where will that leave us? It will leave us right where many serious people believe we are now, to wit, in a banana republic.
Yes, in a very broad sense, political priorities have a place in setting prosecution priorities. For example, a Republican presidential candidate might pledge in the campaign to emphasize prosecuting fentanyl and kiddie porn cases, while a Democratic candidate might say he'll focus resources on environmental crimes and civil rights. I see nothing wrong with that; indeed, it promotes the wholesome sort of political accountability of which you speak. But there's plenty wrong in a sitting President's saying to DOJ, "Prosecute this guy because he's a partisan adversary, but lay off this other guy because he was my college buddy. And don't preach to me about evidence. I'm the President and I give the orders."
There is no standard I care to recognize under which that attitude is anything but classic corruption. Neither prosecutors nor citizens should tolerate it.
(And you aside about the military is not serious: The Constitution explicitly makes the President the CIC of the armed forces).
The Constitution also puts the President in charge of prosecutions, just as much as it makes him commander in chief. "The executive Power shall be vested in a President of the United States of America." There was not always a Department of Justice, and before 1870 the Attorney General did not have his own department. He was a subordinate of the president, and while Congress could organize a new department, it could not take away the president's authority.
When you write "...But there's plenty wrong in a sitting President's saying to DOJ, 'Prosecute this guy because he's a partisan adversary, but lay off this other guy because he was my college buddy. And don't preach to me about evidence. I'm the President and I give the orders...'" you conflate two completely different things: Who is in charge and what is legal. There is certainly plenty wrong in the president giving the aforementioned orders. But the problem is in the substance of the orders, not who gives them. If an AUSA decided on his own to "prosecute this guy" because he is some kind of adversary of the AUSA, and to lay off another guy because he was the prosecutor's, or the president's college buddy, that would also be improper. The constitution entitles the president to control everything within the authority of the executive branch. In the example you give, persecuting adversaries while showing favoritism is NOT within the authority of the executive branch, nor is ignoring "evidence." A defendant, or the House Judiciary Committee, would be right to raise these issues regardless of who ordered the misconduct.
Analogously, the president is entitled to give orders to the military, but only lawful ones. He cannot order a soldier to commit a crime, but it would be just as unlawful for a junior officer to order a soldier to commit a crime. To say that Congress can outlaw some military activities is not to deny that the president is entitled to control the military; being commander in chief means that wherever the military has discretion, the president is entitled to make the call, but some things are outside the military's discretion. That is the definition of unlawful.
While I am second to none in my contempt for Trump's apologists, I do recognize some of the things that drove them insane, and one of them is precisely the position you take. Conservatives have watched for decades as conservative election victories were nullified by bureaucrats. W.'s agenda was stymied by State Department foreign service officers who threw public temper tantrums and ridiculed the president overseas. When Obama illegally implemented DACA, conservative lawsuits dragged on for years, but when Trump repealed DACA because it was illegal, a court instantly told him "You can't do that" because of the APA. DeSantis reigns in racially bigoted college administrations, and Democrats invoke frivolous First Amendment claims and weaponize the accreditation process to nullify the results of the gubernatorial election. I do not regard, and many conservatives do not regard, the progressive project of removing the government from political control as legitimate. There is always the risk of misconduct by a president, just as there is always the risk of misconduct by a bureaucrat. The constitutional solution is to vest discretionary power in elected officials and subject them to constant public scrutiny. Under our Constitution, if the executive branch makes a discretionary decision which an observer does not like, there must be an elected official to whom the blame can be assigned.
As will be readily apparent, the final paragraph of my recent post was left unfinished when I somehow posted it by mistake. Letitia James has suggested her indictments and all other indictments of Trump should be put on the shelf until the documents case has been decided. The Georgia attorney weighing election-related charges against Trump hasn't signed on to this strategy, but she probably will come around, at least to the extent of slow-walking her indictment if she makes one. There is no legal reasons to pause these proceedings, for there would be different attorneys, different judges and different venues for the cases. Ms. James, almost certainly with support from the Democratic establishment, wants to keep the spotlight on the special counsel indictment, without the distractions of a yawn-inducing business case in New York or what promises to be a weak case in Georgia. Jim Dueholm
I agree with Bill's conclusion, but will not till a field that, as Bill says, is well plowed. Both sides of the indict-don't indict debate have been aired again and again. But the details of the indictment, the unusual request of the special counsel for a speedy trial, and the third-party response to the indictment, provide further evidence a sleeping dog should have been left to his slumber.
The indictment is detailed, full of understated sound and fury, but it appears possible if not likely that, while the evidence may show careless exposure of sensitive material, it's far less likely it will show danger to national security, in which case the evidence would show there, but no there there.
The case is fraught with the likelihood of pre-trial motions and the need to vet jurors and handle evidence in a way that doesn't expose sensitive information. I think the DOJ rules ban proceedings within 60 days of an election that could be impacted by the proceeding, which means the special counsel proceedings might have to be put on hold if the case hasn't gone to trial before, say, September 1, 2024. In this context the special counsel's unusual if not unprecedented request for a speedy trial suggests he wants to make short shrift of the pre-trial motions, vet the evidence to make sure sensitive information isn't given to the jury, vet jurors in an extremely sensitive case, and get to trial by that magic date. He may also want to get to trial before continuing lack of progress in the investigations against Hunter and Joe Biden make the disparate treatment of Biden and Trump even more glaring than it already is. In context the special counsel's apparent quest smacks more of politics than law.
The response of Letitia James, the New York Attorney General, to the indictment suggests the Democratic establishment does want a rush to trial in the documents case. She is pursing criminal charges against Trump relating to tax, bank fraud and other
One quibble. You say the "documents that were not his and to which he had no right after he left office." Yet, in her ruling in the Clinton case involving Judicial Watch, Judge Amy Berman Jackson said that the President decides what are personal documents and what are not "at his sole discretion" and the National Archivist cannot second-guess him - nor does the Archivist have any power to seize the documents, let alone do it on behalf of a FOIA request.
Because the Special Prosector did not charge Trump under the PRA, I'm guessing he knows that this precedent would be a problem for him.
What am I missing?
I don't think you're missing anything, but I do think District Judge Jackson was wrong and that her view of unlimited and unprincipled Presidential power in that regard is going to get tanked by the higher courts.
Interesting - might happen.
Personally, at this moment, I am much more concerned about the unlimited and unprincipled power of the administrative state (DoJ, the IC's, the IRS, etc.) than I am of any current or former President. The agencies stonewall Congressional oversight routinely, and I find it amusing that the DoJ is upset with Trump for "playing games" with them on a subpoena - the same DoJ that resisted the subpoena for the 1023 document on Biden.
Seems to me these kinds of disputes should just be worked out between the parties, as they usually are, not brought to conclusion with a SWAT team.
The DOJ already tried to work it out. In fact, they bent over backwards to accommodate Trump, yet he still wouldn’t give up the documents. The SWAT team was the last resort. Knowing Trump’s mind, he saw it as a win-win: either the DOJ would give up and let him keep the documents to sell to the highest bidder, OR he could force them into raiding his tacky hotel, and then fundraise off his usual “Poor me, I’m so persecuted!” schtick. Either way, he profited.
Most people don’t think like this, but most people aren’t sociopaths either.
So,prosecution and persecution in the name of a sullied and perverted Rule of Law!
Democracy you weep, but Hillary and Hunter you ignore !
How very judgemental, jurymental and execution mental
You are MENTAL!
If I were Merritt Garland, I would not have authorized the mishandling sensitive documents charges, which rightly or wrongly sound like double standards to much of the country, but I would have authorized the obstruction of justice charges. Maybe it's just me, but they strike me as uniquely awful - intentionally hiding subpoenaed documents so that his lawyer would file an unwittingly false affidavit with the grand jury about Trump not possessing such documents. I don't see any difference between that and Nixon erasing or instructing his secretary to erase 15 minutes of audiotape.
-- "Serious question though; do you really think that Biden ordered this prosecution?" No. The "Biden Administration" isn't Biden himself. I think it highly likely that Garland checked off on it and at least notified the White House.
-- "Is this Biden’s call or Merrick Garland’s? If it’s Merrick Garland’s call, what would you have had Biden do to stop this?" Biden could have issued a preemptive pardon a la' Ford with Nixon. That would have made a prosecution pointless. But there was nothing in it for Biden to do anything remotely like that so it wasn't going to happen or even get considered.
-- "Should he have told Garland not to appoint a federal prosecutor?" No. As you suggest, the White House should stay out of specific prosecution decisions. I'm pretty sure that Comey turned decisively against Trump when Trump asked him to go easy on Flynn. That's something the President absolutely cannot do, and it would have blown off the top of Comey's head.
-- " Biden can’t actually order Garland not to prosecute Trump, right?" Technically he can, on pain of firing Garland. But this kind of thing should never happen. If the White House had tried to push me in that way when I was at DOJ, I would have told it to get lost -- either that or I would have quit on the spot with a blistering statement to the press.
-- "As a retired lawyer to a former federal prosecutor, would it appropriate for Biden to put his thumb on the scale here in any event? I would have preferred for this prosecution not to have gone forward, but sometimes the law is an ass, as they say."
Garland was in a tough position. There is at the minimum a credible argument that Trump should face the music. He made his own bed and his behavior was both dishonest and illegal. But in my view, and for the reasons I've explained, the greater wisdom for the Republic was to stand down. Still, once you've appointed a Special Counsel, then, unless his decision is clearly unreasonable -- which this one wasn't -- there's a strong argument that the AG should stand aside.
As I said in my title, there are no good options here, because Trump is lawless and DOJ's behavior has forfeited public trust. Ugh. I'm glad I'm outta there.
I’m afraid a pardon wouldn’t work. To accept a pardon means acknowledging wrongdoing, and Trump thinks everything he’s ever done is perfect. I don’t know whether that’s the result of his vastly over privileged life surrounded by flatterers, or mental illness, or dementia, or what, but we can’t toss the rule of law out the window just to humor a mentally sick man.
Where do you get the notion that the President cannot tell prosecutors what to do? Prosecutors wield immense power, and in a democracy they are accountable to elected officials. Should the President not interfere in military matters? What about environmental protection policies?
"Where do you get the notion that the President cannot tell prosecutors what to do?"
From 25 years in, at various times, the White House, DOJ, and the US Attorney's Office. But to answer (more summarily than it needs) the nub of your question: Mixing law (a body of neutral principles) with politics (which is anything but neutral) is a really bad idea, because the corruption of law is the sure result.
Of course I never said that the President CANNOT tell subordinates at DOJ what to do; I said he shouldn't. The reason he shouldn't is easy to see, and you already put your finger on it. Prosecutors wield immense power. You can severely complicate someone's life just by indicting him. If indictments are to come about because they are politically convenient to the party in power, rather than because the evidence fairly examined shows probable cause to believe that a crime has been committed, where will that leave us? It will leave us right where many serious people believe we are now, to wit, in a banana republic.
Yes, in a very broad sense, political priorities have a place in setting prosecution priorities. For example, a Republican presidential candidate might pledge in the campaign to emphasize prosecuting fentanyl and kiddie porn cases, while a Democratic candidate might say he'll focus resources on environmental crimes and civil rights. I see nothing wrong with that; indeed, it promotes the wholesome sort of political accountability of which you speak. But there's plenty wrong in a sitting President's saying to DOJ, "Prosecute this guy because he's a partisan adversary, but lay off this other guy because he was my college buddy. And don't preach to me about evidence. I'm the President and I give the orders."
There is no standard I care to recognize under which that attitude is anything but classic corruption. Neither prosecutors nor citizens should tolerate it.
(And you aside about the military is not serious: The Constitution explicitly makes the President the CIC of the armed forces).
The Constitution also puts the President in charge of prosecutions, just as much as it makes him commander in chief. "The executive Power shall be vested in a President of the United States of America." There was not always a Department of Justice, and before 1870 the Attorney General did not have his own department. He was a subordinate of the president, and while Congress could organize a new department, it could not take away the president's authority.
When you write "...But there's plenty wrong in a sitting President's saying to DOJ, 'Prosecute this guy because he's a partisan adversary, but lay off this other guy because he was my college buddy. And don't preach to me about evidence. I'm the President and I give the orders...'" you conflate two completely different things: Who is in charge and what is legal. There is certainly plenty wrong in the president giving the aforementioned orders. But the problem is in the substance of the orders, not who gives them. If an AUSA decided on his own to "prosecute this guy" because he is some kind of adversary of the AUSA, and to lay off another guy because he was the prosecutor's, or the president's college buddy, that would also be improper. The constitution entitles the president to control everything within the authority of the executive branch. In the example you give, persecuting adversaries while showing favoritism is NOT within the authority of the executive branch, nor is ignoring "evidence." A defendant, or the House Judiciary Committee, would be right to raise these issues regardless of who ordered the misconduct.
Analogously, the president is entitled to give orders to the military, but only lawful ones. He cannot order a soldier to commit a crime, but it would be just as unlawful for a junior officer to order a soldier to commit a crime. To say that Congress can outlaw some military activities is not to deny that the president is entitled to control the military; being commander in chief means that wherever the military has discretion, the president is entitled to make the call, but some things are outside the military's discretion. That is the definition of unlawful.
While I am second to none in my contempt for Trump's apologists, I do recognize some of the things that drove them insane, and one of them is precisely the position you take. Conservatives have watched for decades as conservative election victories were nullified by bureaucrats. W.'s agenda was stymied by State Department foreign service officers who threw public temper tantrums and ridiculed the president overseas. When Obama illegally implemented DACA, conservative lawsuits dragged on for years, but when Trump repealed DACA because it was illegal, a court instantly told him "You can't do that" because of the APA. DeSantis reigns in racially bigoted college administrations, and Democrats invoke frivolous First Amendment claims and weaponize the accreditation process to nullify the results of the gubernatorial election. I do not regard, and many conservatives do not regard, the progressive project of removing the government from political control as legitimate. There is always the risk of misconduct by a president, just as there is always the risk of misconduct by a bureaucrat. The constitutional solution is to vest discretionary power in elected officials and subject them to constant public scrutiny. Under our Constitution, if the executive branch makes a discretionary decision which an observer does not like, there must be an elected official to whom the blame can be assigned.