Balkinization  

Sunday, August 17, 2014

Texas Prosecutor Indicts Ham (you fill in the blank)

Stephen Griffin

It's been said that a prosecutor could get a grand jury to indict a ham sandwich.  In the Texas case, it's a governor.  At moments like these, I'm grateful to listservs I belong to, such as Conlawprof, for showing me that I'm not an outlier.  Like a number of constitutional law scholars, I'm very troubled by the indictment of Rick Perry.  I'm certainly no fan of Governor Perry, but closely analogous issues were discussed and argued out during the 1998 Clinton impeachment.  Should prosecutors clothed with the authority of a grand jury intervene in matters of high (or low) politics with criminal indictments?  I say no.  If they have facts to present, provide them to the legislature or whatever body is tasked with the responsibility of impeachment.


True, we could imagine a governor committing an "ordinary" crime, one completely unconnected with his official responsibilities.  But no one could make that case here, so I'm setting aside the issue of whether it might be better for a prosecutor to proceed against a chief executive accused of, say, murder, rather than a legislature pursuing impeachment and conviction.  Governor Perry isn't being indicted for just vetoing a law, but this comes pretty close.  What we have at most is a case of Texas (and Austin) hardball politics.  Governor Perry tried to remove a prosecutor he probably didn't like very much after she violated the law and perhaps brought her office into disrepute.  And that's a crime?  That doesn't seem very plausible to me and I wonder if the prosecutor has really thought through the broader constitutional implications of what he and the grand jury are doing.


I am fortunate that I can feel the warm embrace of consistency, since I argued against a prosecutor (Ken Starr) having such a power during the Clinton impeachment.  I argued that Congress was the only body who could properly investigate and remove a president.  As long as the Texas constitution has roughly similar provisions to the federal Constitution, which seems to be the case, the same separation of powers/checks and balances logic holds here.  Governor Perry should be held to account in the political/electoral/democratic arena, not by a single prosecutor, jury, or judge.

Comments:

I don't know if the law under which Perry was indicted is constitutional or whether the prosecutor can prove his case. That said, there is NOTHING political about this prosecution.

An ethics complaint was made against Perry in a Travis County Court. All of the Travis County judges RECUSED themselves to avoid the appearance of political motive (the Travis County judges were all Democrats). The administrative judge appointed a San Antonio judge, a Republican, to hear the complaint. That Republican judge appointed a San Antonio lawyer, McCrum, to be a special prosecutor. McCrum is, at best, non-partisan. He was appointed to be Asst. U.S. Attorney by George H.W. Bush. Further, he was nominated by Obama to the Federal bench with the support of Senators Cornyn and Hutchison (he withdrew his nomination).

So, whatever you may say about the indictment or the underlying law, the prosecution of Perry is the clearly non-partisan and apolitical.
 

There's something else here that no one seems to be aware of. At the time of the veto threat, Travis County District Attorney Lehmburg's office, the Political Integrity unit, was investigating CPRIT, a cancer research fund that was apparently doling out dollars to Perry's friends.

No one before Perry had had the cajones to defund the Political Integrity unit because, politically, it looks awful. And to defund the unit when it was investigating Perry and his buddies would look extremely bad. But Lehmburg's DUI gave Perry nominal cover to do just that: defund the Political Integrity unit under the guise of "no confidence" in Lehmburg's ability or competence.

 

Scott Lemieux at LGM, hardly a neocon, concurs with Professor Griffin. So does Jonathan Chait. Are there any liberal pundits welcoming the indictment?
 

I appreciate Michael Smith's details.

The thing is that the veto power can be used for bad ends. It's a fine line. And, a lot of people who find Rick Perry ... well they don't think much of him ... don't think much of this. You can add, e.g., some comments in response to the indictment over at Sentencing Law and Policy.

Think Progress was linked by Scott L. too. TP thinks it is an uphill climb. A few commenters there support the indictment. But, given the "nominal cover" and the problems with line drawing given he used his veto power, seems a dubious prosecution.

Also, it brings to mind Delay. He was indicted and it was stuck in the courts for years. Might still be there going by the Wikipedia page.

The situation does suggest a concern for limits on broad powers. Isn't the pardon power, e.g, limited in Texas? Cf. for a U.S. President.
 

"I argued that Congress was the only body who could properly investigate and remove a president."

Now, clearly Congress is the only body that could remove a President. But, "investigate"? Are you really going to assert that Presidents are utterly immune to all legal process save impeachment during their term of office?

The authors of the Constitution were capable of stating explicitly a far less extensive protection for members of Congress. I should think that if they'd intended Presidents to be utterly untouchable save by impeachment, they'd have managed to actually say so.

So, here's a suggestion: Only Congress can remove a President, but as we have no royalty, Presidents are as subject to normal legal process as any random citizen. And Congress is fully entitled to subcontract investigating a President.
 

Perhaps Gov. Perry with his new Clark Kent post-2012-OOPS! image will emerge in the 2016 presidential campaign for the GOP nomination as: "SUPERHAM!" Meanwhile, back at the Ranch ....
 

Perhaps this should be compared to former Alabama Governor Don Siegelman, a Democrat, who has been serving jail time.
 

This comment has been removed by the author.
 

I support Clinton v. Jones, including its discussion on how Congress might treat a President somewhat differently given the nature of the office.

But, especially given the anniversary of Nixon leaving office, this idea only Congress can 'investigate' the President is rather interesting.

I think the OP goes too far there, most likely.

 

I am not sure I understand the analogy to the Clinton matter. There the independent counsel was operating pursuant to a statute that specifically allowed him to investigate potential criminal activity by the president (indeed, that was the rationale for the independent counsel law in the first place). One might question whether the statute was constitutional, but the Supreme Court, in its wisdom, held that it was (Scalia being the only dissenter). And, as Joe suggests, if one thinks there is something inherently improper about investigating a president for potential criminal activity, one has also to contend with US v. Nixon.

Of course, indicting or prosecuting a sitting president would raise additional constitutional issues, which remain unresolved, but that’s not what Starr did. Instead, he referred the evidence of potential impeachable offenses to the House, which (if I recall correctly) was specifically authorized by the independent counsel statute.

The controversy in the Clinton case was primarily regarding the question of whether, assuming that Clinton had in fact committed a federal crime (which was only half-heartedly disputed by his defenders), impeachment could lie for a crime that was unrelated to his official duties. Alternatively, assuming that impeachment was proper for a really serious “personal” crime (like murder), the charge of perjury in a civil deposition wasn’t serious enough to qualify. These were fair issues to debate, but I think most people would concede, at least now that the partisan passions have subsided a little, that it wasn’t up to Starr to make those judgments, which he properly left to the House to consider.

The case of the Texas special prosecutor seems to be entirely different. If I understand correctly, he is alleging that Perry committed a crime simply by vetoing or threatening to veto the funding for the prosecutor’s office as a way of forcing the prosecutor to resign. While people like Michael Smith may suspect that Perry did this as a pretext to get rid of a political opponent (easy to believe) or to thwart a potentially embarrassing investigation (possible, though more speculative), the special prosecutor is not (again, as I understand it) even alleging this as part of the indictment. In other words, even if Perry was sincere in wanting the prosecutor to resign simply because she had been convicted of a fairly serious drunk driving charge, the allegation is that Perry still committed a crime under Texas law. While I know nothing about the statutes in question, common sense and the plain reading of the statutory texts (as explained by Eugene Volokh among others) suggests this is far-fetched. And if there were a plausible statutory reading to support the indictment, there would be serious constitutional problems as well.

Unlike Clinton, of course, the charges against Perry clearly relate to official conduct. Now if those charges also involved an actual crime (say bribery), I don’t know whether Texas law would permit or mandate the special prosecutor to proceed with an indictment rather than refer the evidence to the legislature for possible impeachment. From the perspective of good government and general constitutional principles, though, the latter would seem the far more preferable course.

In short, Starr had strong evidence of a crime and, rather than bringing an indictment, he followed the prudent course of referring the matter to the House for consideration. The Texas special prosecutor, having slim to no evidence of a crime and dealing with conduct that is clearly official in nature, nonetheless decides to indict rather than to refer the matter to the legislature. So I have difficulty with the comparison.

 

IMO, the fact that the charges against Clinton were mostly unrelated to official acts suggests that they should have been brought in court. And I absolutely reject the notion that being elected to office is some kind of get out of jail free card, that requires criminal prosecutions to be put on hold until your term of office ends.

There's no basis in the Constitution for this idea. And, as I say, where the authors intended that sort of special privilege for the legislature, they were perfectly capable of making it explicit. Which certainly argues against the notion that Presidents are entitled to such deference.

The problem in the Perry case is not charges being brought against a sitting executive. It's that they're BS charges. That the charges were brought purely for political effect, and not in the expectation that Perry will ultimately be convicted, is so clear even numerous prominent Democrats are outraged by this.
 

For some reason, some cannot wait for "Texas Justice," however defined, however used in the past, to resolve this matter. Perhaps the goal is to "coerce" the special prosecutor to reverse or drop the indictment, or perhaps to influence the judge that may hear the case to question the indictment and dismiss it. (Or to influence potential jurors if the case goes to trial.) But let's be patient and let the "Texas Justice" system work. Surely Perry will be well represented in this matter.

There are clear lines of legal/illegal in many, perhaps most, situations. But there are also grey areas, especially in politics; and in this grey area some elected officials try to get as close to the line as possible, and they often get away with it. Through the "Texas Justice" system, we'll get an answer, and perhaps sooner than later. If the indictment is tossed out as politically motivated AND lacking credible evidence of a crime, all well and good. But if the case proceeds to trial, and evidence unfold, it may be damning as to possible abuses of political power; we don't have the benefit of all the evidence as yet.

If the indictment is dismissed without a full evidentiary trial, what message might this send to elected officials who may be tempted in the grey area to get as close to the line as possible? If there is a full trial (with or even without a conviction), perhaps a different message would be sent to elected officials working the grey area.

So let's be patient. Meanwhile, back at the Ranch ....
 

I share the opinion of various people who are no fans of Gov. Perry that the indictment looks like a questionable thing but if nothing else it is an interesting executive power and its limitations discussion to have.

The DS case Shag cites is problematic for certain reasons and there might be some overlap but don't think it has quite the same tenor as to executive power.

Texas justice will go on regardless -- all this chatter is of limited effect there I gather -- though as a matter of overall public integrity and such, I do question the value of this prosecution.
 

Perjury and obstruction of justice are actual felony crimes, a veto is a constitutional power.

The proper analogy is not with the properly impeached Mr. Clinton, but rather with another Texas Democrat prosecutor's abuse of prosecutorial power against Tom Delay, which was later reversed as meritless by the state supreme court.


 

And I absolutely reject the notion that being elected to office is some kind of get out of jail free card, that requires criminal prosecutions to be put on hold until your term of office ends.

The Watergate grand jury was of the view that the President was not "indictable". That's why Nixon was named as an unindicted co-conspirator. The (pretty much unanimous) view of that time was that impeachment was the only remedy.
 

Yeah, we have a problem in this country; We're losing an important principle, equality under the law. Our rulers are becoming royalty. That grand jury was just a symptom of the rot.
 

Out of the mouth of babes - strike that - Brett:

"Yeah, we have a problem in this country; We're losing an important principle, equality under the law."

Of course we have had a problem in this country from its beginnings with slavery, Jim Crow that followed for many, many decades and surfaces a tad too often today on "equality under the law."

But that was obviously not what Brett had in mind as he continues:

"Our rulers are becoming royalty. That grand jury was just a symptom of the rot."

Is the Texas Special Prosecutor "royalty"? Consider the circumstances of his appointment, who he is, his reputation politically and in the legal community.

I note that at Lawcom there is a link (behind its subscription wall) to the Special Prosecutor's discussion with a Texas publication of recent vintage. I'm not a subscriber. Perhaps others have accessed this and can provide a heads up on anything significant.

As to Nixon and the Grand Jury, that was not rot. In fact, it was the Congress that investigated and impeached, forcing the actual rot, to wit, Richard M. Nixon, out of office.

I know very little about the Special Prosecutor, but considering the circumstances of his appointment he may have been compelled to go to the Grand Jury as a practical matter to avoid what otherwise may have resulted in a politics as usual situation. We don't know the evidence presented to the Grand Jury. Perhaps if we are patient we will find out.

Meantime, back at the Ranch ....
 

We're losing an important principle, equality under the law. Our rulers are becoming royalty. That grand jury was just a symptom of the rot.

I agree with you on the main point, but I'm not convinced that, as a matter of Constitutional law, the grand jury was wrong.
 

Brett: And I absolutely reject the notion that being elected to office is some kind of get out of jail free card, that requires criminal prosecutions to be put on hold until your term of office ends.

The Constitution provided impeachment as the only remedy for "high crimes" and the President is the sole executive who is obviously not in a position to prosecute himself, so it is reasonable to assume that Congress needs to impeach the president or the president needs to leave office before the federal government can prosecute him for a crime.
 

"
The Constitution provided impeachment as the only remedy for "high crimes" and the President is the sole executive who is obviously not in a position to prosecute himself, so it is reasonable to assume that Congress needs to impeach the president or the president needs to leave office before the federal government can prosecute him for a crime."

Bart, we don't agree on much (anything?) but we agree here.
 

This comment has been removed by the author.
 

Separate question.

Mark Field or anyone, do you think a state can prosecute a President as a matter of constitutional law? President steals something. Can Texas convict?

What if any penalty that would interfere with his or her was held in abeyance until after the term?

No top federal prosecutor issue there.
 

As I will yet again point out, the authors of the Constitution, when they wished to give Congress quite limited legal immunity, were quite capable of stating it explicitly. The idea that they would have given the President vastly more expansive immunity, and just left it unstated, is a joke.

So you think it's a good idea if Presidents are immune to legal process while in office. There are arguments for that.

But it ain't in the Constitution.
 

Joe, not in my view, no. The President can't be prosecuted, while in office, by a state official. He can, of course, be prosecuted once he leaves office or impeached for a state law crime.

In my view, any other rule would seriously infringe the Supremacy Clause. Imagine, for example, an attempt by GA to prosecute President Lincoln for his anti-slavery views (such views being illegal under GA law). In McCulloch, even an attempt to tax the Bank was held to violate the Supremacy Clause, and criminal prosecution of bank officials for failure to pay the tax would seem to be an a fortiori case.
 

Brett, the absence of wording in the Constitution can never be definitive. In this case, as Terri pointed out, the inclusion of impeachment as a remedy implies that no other remedy is available.

There are also structural arguments against prosecution of the President. For example, even a weak version of the unitary executive theory would preclude the AG from pursuing an indictment.

As for your view that your opponents are a "joke", the fact that you're in a very substantial minority might cause you to reconsider at least the categorical certainty of your position.
 

Mark, I don't think the two examples overly convincing.

If a state tried to prosecute regarding federal institutions (the bank) or something that part of the President's duties (putting aside the 1A) like public statements on slavery, it would be problematic.

I can see problems, but not sure of the "Supremacy Clause" -- there might be but can't tell from your examples -- of a state that prosecutes let's say for a run of the mill murder, a crime that until fairly recently would be seen as left to the states in most cases (the assassination of JFK underlines the lengths that was taken).

 

addendum: if the state law is used as a way to infringe on executive power in a clear way, to forestall special cases, fine.

Burr was indicted for the duel. Let's say Andrew Jackson was involved in a duel in a state where it was illegal.

Blocking a state prosecution while Jackson was in office would be different to me from the two examples given.
 

Joe: Mark Field or anyone, do you think a state can prosecute a President as a matter of constitutional law?

Once again, probably not until they leave office.

Under the expressio unius est exclusio alterius principle of textual construction, when the law provides a single remedy, others are understood to be excluded. Impeachment is the single remedy provided by the Constitution for high crimes.

This interpretation is reinforced by the legal principle generally prevailing at the time that the sovereign was immune from criminal prosecution. The Constitution provided impeachment to remove a president from the position of sovereign to render him or her subject to criminal prosecution.
 

Joe, I kind of lean towards a bright line rule on this, though I think reasonable people could differ. I'd kind of hate for courts to get involved in deciding what was a "run of the mill" prosecution (presumably, one in good faith and that didn't involve the President's official duties). The 3 cases we have as precedent (A. Johnson, Nixon, and Clinton) demonstrate to me that these proceedings are very disruptive to the functioning of the government. I'd hate to add a new level to that.

In addition, the provision in the impeachment clause allowing for later prosecution seems to me to account pretty well for the scenario you raise.
 

But it's not the single remedy provided for burglary.

Impeachment is not exclusive of criminal prosecution. The Constitution is quite specific on that. And, again I say, the Constitution was explicit in granting members of Congress quite limited legal immunity. I will not accept that much greater immunity was granted to the President by mere implication.

This is nothing more than the creeping process of rendering the President a king.
 

Brett states:

"Impeachment is not exclusive of criminal prosecution. The Constitution is quite specific on that."

but does not cite a specific provision in the Constitution to support it. Perhaps what he means is that the Constitution does not specify that impeachment prevents criminal prosecution. Here's the language of Section 4 of Article II:

"The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

Impeachment results in removal from office without specifying any criminal proceedings outside of the impeachment process. Murder would seem to be a high crime. As with many provisions in the Constitution, sometimes an issue is not crystal clear. But perhaps a possible reading of this is that once out of office the person impeached can be prosecuted criminally, unless there might be some aspects of double jeopardy to be considered. But if such an officer were thought to be a serial killer, such a meaning would seem alarmingly ludicrous to many (including me). The "New, New Originalism" might search for what a "reasonable man" would have understood in 1787-9 about the impeachment clause. (As Saul Cornell points out in his Constitutional Commentary article I cited on another thread, is the "reasonable man" of 1787-9 whose understanding is sought to be found from among the federalists or the anti- federalists?)

Perhaps Brett has a cite from the Constitution with the specificity he claims.


 

A single member of Congress is not for constitutional purposes in the same position as the head of the federal prosecution department. Brett takes what is said about an orange and applies it to an apple. Both are fruits (federal officials) but still not the same thing.

I appreciate Mark Field's bright line rule. I just don't think the two examples are very good ones. The concern then is line drawing, maybe by the courts. Somewhat agree. But, citing the presidents impeached show the whole thing was applied somewhat badly at times.

The singular constitutional nature of the President very well might both make wrongdoing a federal matter (shades of supremacy clause) -- the field is taken over by the feds. And, given s/he is the chief law office, prosecution would be problematic. So, impeachment and removal first.

Meanwhile, various civil actions (see Clinton v. Jones) can be applied. And, the President can be removed and later prosecuted. I can see an argument made to have the state prosecute myself, but the alternative is far from "royalty."

As to Bart Palma's reply, I think the problem there is that judges have been prosecuted, even with the impeachment remedy. So, you really have to rely on the sovereign immunity argument unless the judges are protected too. I question the reach of s/i in our system. The special role of the President, also noted, does make that different.

But, impeachment as only remedy cannot be the sole argument. See again, judges. Finally, my hypo can apply to state prosecutions of non-high crimes and misdemeanors. So, just citing that is of limited help.


 

I think everyone can agree that the prosecutor's argument for indictment is novel. I think the distinction has to be made between the veto being the crime itself--no one is arguing that, despite what Griffin says here, and the veto being an element of the crime. The question is whether there is any possible circumstance where the veto is an element of that act. So to explore this, it might be worthwhile to explore a hypo or two.

As a hypo, consider this. Legislature passes an act to appropriate funding for a project, where the project is going to Company X. Governor tells Company X he will veto bill unless Company X makes a contribution to his campaign. They don't, and he vetoes bill. Possible criminal act here?
 

Dorf on Law, including in the comments, is one place that deals with Zathras' useful question:

http://www.dorfonlaw.org/2014/08/rick-perrys-indictment.html

Eugene Volokh provides some useful legal analysis, including discussing an earlier case with some of the same facts:

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/16/is-the-indictment-of-texas-gov-rick-perry-inconsistent-with-a-texas-court-of-appeals-precedent-as-to-the-coercion-count/
 

Here's a concrete example: suppose that in early 1962 the state of FL indicted JFK for adultery. Should that prosecution have gone forward or not?
 

They convict and the penalty is a fine or community service that is done while he is on vacation in such a way that does not interfere with his presidential duties. Or, some penalty that only is applied after he leaves office. Or, is only applied in such a way to deny him certain Florida privileges (tied to conviction of a crime) such as let's say obtaining a state law license.

I say, possibly it is not blocked by the Constitution. I'll assume the adultery wasn't done as part of his official presidential duties.


 

"These were fair issues to debate, but I think most people would concede, at least now that the partisan passions have subsided a little, that it wasn’t up to Starr to make those judgments, which he properly left to the House to consider."

No, Starr started an investigation on A, and then spend years pursuing every allegation he could dig up, quite deliberately. The Republicans realized that if one disregarded norms, an 'independent prosecutuor' could be a useful tool.
 

As for the Perry indictment, I figure it's a case of being stupid enough to give a bad and actionable reason for an act. For example, if I do something that you like, and you contribute to my campaign, that's not bribery - unless I'm dumb enough to openly say so.
 

Zathras: As a hypo, consider this. Legislature passes an act to appropriate funding for a project, where the project is going to Company X. Governor tells Company X he will veto bill unless Company X makes a contribution to his campaign. They don't, and he vetoes bill. Possible criminal act here?

Soliciting a bribe.

Pressuring a disgraced DA to resign is not a crime, even in Texas.
 

Brett: And, again I say, the Constitution was explicit in granting members of Congress quite limited legal immunity. I will not accept that much greater immunity was granted to the President by mere implication.

Sovereign immunity went to the sovereign, not the members of the legislature, and had been established in Anglo-American law for centuries.

Impeachment was meant to remove the perpetrator from the position of sovereign so he or she could be criminally prosecuted.

 

"Bart DePalma said...

Zathras: As a hypo, consider this. Legislature passes an act to appropriate funding for a project, where the project is going to Company X. Governor tells Company X he will veto bill unless Company X makes a contribution to his campaign. They don't, and he vetoes bill. Possible criminal act here?

Soliciting a bribe.

Pressuring a disgraced DA to resign is not a crime, even in Texas.

10:44 AM"

Okay. Now suppose the intent of the veto is not to persuade a DA to resign, but instead to quash an investigation into a bogus charity that the governor is connected to. Indictable?
 

Joe, that's a bit too formalist for my taste. Adultery accusations were political dynamite in 1962. Bringing one would have been a case of partisan mischief, interfering with the operation of the presidency. It's also a fairly serious infringement on the Supremacy Clause, in my view. We can't have each of the 50 states making individual determinations to prosecute the President.

I also think you're too sanguine about the length of time involved, as the Clinton/Lewinsky situation shows. It would have dragged on for months, including the Cuban Missle Crisis (I deliberately chose the year for that purpose). This is why I think a bright line rule is necessary.

For me, the "prosecution later" provision of the Impeachment Clause supports the conclusion that impeachment must be the first remedy. Prosecution should come after impeachment.
 

Zathras: Okay. Now suppose the intent of the veto is not to persuade a DA to resign, but instead to quash an investigation into a bogus charity that the governor is connected to. Indictable?

Depending on the statute and evidence, it could be obstruction of justice.

Bribery and obstruction of justice are well established crimes that can arise from abuse of legal authority.

Coercing a disgraced DA to resign is not.
 

Well, Bart, I am glad to now agree with the possibility of an indictment here:

"There’s the added intrigue over the allegation that Perry’s aim was to kill an investigation into the scandal-plagued Cancer Prevention and Research Institute of Texas (CPRIT)."

http://www.texasobserver.org/everything-wanted-know-rick-perrys-new-scandal/
 

Zathras: "There’s the added intrigue over the allegation that Perry’s aim was to kill an investigation into the scandal-plagued Cancer Prevention and Research Institute of Texas (CPRIT)."

It is an abuse of prosecutorial power to indict anyone on mere allegations, especially politically motivated ones.
 

"Bart DePalma said...

Zathras: "There’s the added intrigue over the allegation that Perry’s aim was to kill an investigation into the scandal-plagued Cancer Prevention and Research Institute of Texas (CPRIT)."

It is an abuse of prosecutorial power to indict anyone on mere allegations, especially politically motivated ones.

11:12 AM"

That was 4 months ago. Do you think prosecutors release every piece of evidence they have the day an indictment is returned?
 

Zathras:

The prosecutor who indicted Perry presented no such allegation or evidence to the grand jury.

Here is the indictment:

http://www.cnn.com/2014/images/08/15/rick-perry-indictment.pdf
 

" Bart DePalma said...

Zathras:

The prosecutor who indicted Perry presented no such allegation or evidence to the grand jury.

Here is the indictment:

http://www.cnn.com/2014/images/08/15/rick-perry-indictment.pdf

11:29 AM"

First, the indictment will never include everything presented to grand jury. So that statement makes no sense. Second, the statements in the indictment are not in contradiction with the reason to make the DA resign or to withhold money from the Public Integrity Unit was to quash investigation into the charity. This isn't Europe; an indictment is not a complete summary of the evidence against the defendent.

Part of my point here, however, is to argue not with you, but with Griffin. Griffin seems to think that a veto, or threat thereof, can never be used as an element of a crime. The hypotheticals I gave, including the one possibly relevant to Perry, do show that Griffin is being ridiculously overbroad in his argument.
 

Zathras:

The indictment alleges that Perry's intent in issuing the veto was to compel the DA to resign, not to obstruct an investigation.

If this prosecutor did indeed ask the grand jury to indict for obstruction of justice, it appears the grand jury refused to do so.
 

" The indictment alleges that Perry's intent in issuing the veto was to compel the DA to resign, not to obstruct an investigation."

It doesn't have to be either/or. The intent to compel the DA to resign could be to obstruct the investigation.


 

"Sovereign immunity went to the sovereign, not the members of the legislature, and had been established in Anglo-American law for centuries."

And the President is not the soveriegn, in America.

No, I'm not going to be persuaded, and the example of Clinton, where justice delayed was justice denied, only makes me more adamant. Provisions can be made for the President to continue in office during a legal proceeding, things can be scheduled for his convenience, but absolute immunity?

Screw that, he's not a king.
 

Nobody's arguing for absolute immunity. They're arguing that impeachment has to be the first remedy, and that prosecution should come after impeachment and/or after the President leaves office.
 

Zathras: It doesn't have to be either/or. The intent to compel the DA to resign could be to obstruct the investigation.

The DA was not involved in the investigation. The program was simply run out of her office. If the DA resigned, then the investigation would have continued without a hiccup.

 

BD: "Sovereign immunity went to the sovereign, not the members of the legislature, and had been established in Anglo-American law for centuries."

Brett: And the President is not the soveriegn, in America.


American law did not eliminate sovereign immunity when we got rid of the English King. As the head of state, the President is very much the sovereign in our government.

I am not arguing the desirability of sovereign immunity. Rather, I am noting the existence of sovereign immunity and why it explains the impeachment remedy provided by the Constitution.
 

Joe, that's a bit too formalist for my taste. Adultery accusations were political dynamite in 1962. Bringing one would have been a case of partisan mischief, interfering with the operation of the presidency.

That's an assumption. If a conservative locale evenhandedly enforced moral laws, it need not be partisan mischief. Anyway, we can be at this all day -- you think there is not a single crime that a state can prosecute, even if Congress decides not to impeach (for political reasons ... putting aside premodern delays regarding transportation etc. -- imagine a crime in some isolated state while the Congress was in recess) and the "criminal" can be out and about for eight years (more before the 22A) while the President is in office. I wish not to avoid the partisan concerns you raise, but prosecution has that aspect regardless in a variety of cases.

It's also a fairly serious infringement on the Supremacy Clause, in my view. We can't have each of the 50 states making individual determinations to prosecute the President.

Does this work for every federal official? What about members of the U.S. Supreme Court? Is every crime they commit only a matter of federal prosecution as a matter of constitutional law? What about civil process? Fifty states, even if it in some fashion burdens the President, can make individual determinations in regard to various civil matters. Why is criminal process not in certain cases also a state matter? Certain crimes have limited statutes of limitations. This "get out of jail free" card at some point (or are they tolled? it gets confusing) seems absurd, especially as applied to petty crimes and punishments that don't affect presidential authority. If JFK couldn't, e.g., get a law license in Florida because of the adultery, what sort of "political mischief" would that cause? My terms accept states cannot interfere with Presidential authority.

I also think you're too sanguine about the length of time involved, as the Clinton/Lewinsky situation shows. It would have dragged on for months, including the Cuban Missle Crisis (I deliberately chose the year for that purpose). This is why I think a bright line rule is necessary.

I take it you think Clinton v. Jones was wrongly decided. How long would an adultery trial in 1962 take? Given the special situation, if they prosecuted, it could be required that the special duties of the President could be taken into consideration. As a policy matter, I think Congress very well can block such prosecutions by statute by taking control of the field.

For me, the "prosecution later" provision of the Impeachment Clause supports the conclusion that impeachment must be the first remedy. Prosecution should come after impeachment.

Today, the state wouldn't be the one who prosecuted John Brown or Oswald, but prosecutions that to me seem patently federal were left to the states. So, I'm unclear what the original understanding was there for all criminal cases myself. And, again, that doesn't quite work -- JUDGES are prosecuted first now. In fact, some felt in a few cases that failure to prosecute should have ended the impeachment. The special nature of the President, not the Impeachment Clause itself, seems to be what is relied on. And, I'm okay with your position basically -- it seems to have worked okay so far. Not sure how skin tight it is though.
 

Does this work for every federal official?

No. As you indicate at the end, my view is limited to the President. He's the only official who has all the power of one branch invested in him alone.


I take it you think Clinton v. Jones was wrongly decided

Yes, I do.

How long would an adultery trial in 1962 take?

Probably for as long as his/her political enemies wanted it to take. Ken Starr is a pretty bad example of that sort of thing.

The special nature of the President, not the Impeachment Clause itself, seems to be what is relied on. And, I'm okay with your position basically -- it seems to have worked okay so far. Not sure how skin tight it is though.

That's certainly part of the argument. It's not a perfect system, but I think the country can afford a limited remedy in the case of one person out of 300 million.
 

Oh, I think we can afford it. Until we get a murderer in the White house, and 34 Senators refuse to convict, anyway.

But this isn't a policy question for me. Maybe it would be a defensible policy. (I don't think so, but people can differ.) But it's not a defensible policy which is to be found in the US Constitution.

You don't find something that this grossly violates the fundamental principles of equality under the law, and, yes, the distribution of powers in a federalist system, by implication. And there's no real textual hook here.

In short, maybe a good idea, but it doesn't say that.
 

It seems to me the impeachment provisions in the Constitution provide a mechanism to remove a President from office and are something separate from, and not therefore precluding, criminal liability.
 

I got up a little early and could not go back to sleep. So I started my Internet ritual (after checking Emails) that starts with the NYTimes. Some observations,thoughts, not too deep, as I plan for another busy day of, inter alia, reading.

1. The front page reports on Gov. Perry's legal team, which is a tad heavy for what is supposed to be a "slam dunk." Perhaps this is pro bono or on the tab of Texas taxpayers or funded from campaign funds. Gov. Perry's exercise of his constitutional right to counsel is not limited to just one good lawyer. But speaking of inequality, poor people's rights to counsel are usually underfunded.

Meanwhile, I assume Gov. Perry will gather the team for a strategy session back at the Ranch.

2. Maureen Dowd's column today "Alone Again, Naturally" is rather rowdy and dowdy. But I thought this first sentence from her penultimate [still my favorite word] paragraph:

"The Constitution was premised on a system full of factions and polarization."

would have caught the eyes of Madison fans and of Sandy. This is a subject that is addressed in the Summer issue of Constitutional Commentary on Charles Beard that I am reading. Perhaps Mark Graber might post on this as he read all the papers in that issue as presumably he had a large role in putting that project together. Eventually some of the papers may make their way to SSRN availability.

3. The Dining and Wine Section features Ashley Parker's "On Senate Menu, Bean Soup and a Serving of 'Hyperpartisanship.'" In my long years of private practice lunch has been important for me not just for nutritious and good food but to sit down with good friends, as well as strangers with no phone calls (in much of those years, cell phones were not that common). Lunch was especially important after marriage and four children in short course, limiting my time with friends, as the law was indeed a "jealous mistress." Much of the time I did not have time to go out for lunch. But it was still important and I would limit interruptions in the office while enjoying a good sandwich and listening to jazz on my radio, perhaps for a half hour or slightly more before getting back to "billable hours." But even in my "salad days" (don;t hold the anchovies!) I would make an effort to go out for a sit down lunch at least once a week as time with friends was limited due to the noted family and professional commitments. Of course, politics would be discussed, sometimes heatedly. These lunches could run 2-3 hours, fueled with 1, 2 and rarely 3, Bombay on the Rocks with a wedge of lime.

Lunch was once important in the District. Perhaps the current political dysfunction is attributable to the changes in lunching noted in this article. Maybe, just maybe, our elected officials will take time away from hustling for campaign funds and sit down for lunch, sometimes with those they may have political differences with. As the article title suggests, order "Bean Soup* and Serving of 'Hyperpartisanship'" - break bread, but not wind, which is usually reserved for the Senate and House floors, Committee rooms and TV sound bite appearances.

*I confess that I linked to this article hoping for a recipe for the Senate dining room's "signature bean soup."

I'm getting hungry. It's breakfast time. Chow {sic, I'm now Italian) for now.
 

Here's my Gov. Perry "OOPS!" My closing should have read:

"I'm getting hungry. It's breakfast time. Chow [sic, I'm not Italian) for now."

I trust that if at least in the Senate its members give consideration to this NYTimes Dining and Wine Section article and revive the Senate Dining Room of the past, that it will not result in dining and whining. Get real, guys.
 

Lawcom provides a link to a Texas Journal article on Gov. Perry's "High Profile" legal team. Since subscription is required, I did not get it.

Back in the early 1970s, a client was being sued in a Texas court on alleged anti-trust violations. I learned very quickly that the Houston bar had great lawyers. In addition to my client there was a larger corporate defendant. The plaintiffs were two sizable corporations. Four major Texas law firms primarily from Houston represented the parties. I was more used to NY, MA and Washington, DC major law firs at the time. Houston bar, I heard you loud and clear, a bar that seemed more gentlemanly that did not diminish their legal acumen. I had had a fondness for Texas going back to my pre-teen days of the late 1930s learning from Tom Mix on the radio about "Round Up Time in Texas" commercialized for my favorite breakfast serial Ralston. Later on (early TV) Red Skelton told a story as a Texas soda jerk in an ice cream parlor telling us of a predecessor who got fired because "He forgot the "ala mode." By then, I had been aware of the "Alamo" from the movies and grade school history and got the joke. (Of course, the Alamo was no joke, although the movie may not have been quite as historical as happened on the ground.)

So as I think of the "High Profile" legal team from various firms both outside and inside Texas on a case that is considered by so many a "slam dunk", why? Because the funds (OPM, most likely) are available? Texas not only has great law firms but great country lawyers. Remember, in basketball one person actually makes the "slam dunk." Which of the "High Profile" lawyers will make the "Slam Dunk"? I imagine the competition will be keen. Yes, it take a team to assist the "slam dunker" but in a law firm, it is usually the lead attorney who well and readily recognizes the work of his team.

When the "High Profile" legal team meets at the Ranch as I speculated earlier, a strategy may be spelled out - will it be a short-ball or long ball game strategy? Will the strategy consider its impact on potential 2016 politics? Will it be short-ball aimed at early dismissal? Yes, back at the Ranch these "High Profile" lawyers may determine the "heads" to roll.

Let's be patient and await the upcoming "POLITICAL ALAMO IN AUSTIN." Maybe the bats will be disturbed. But most of all I hope that Austin's great music scene will survive as both Austin and I have our limits.

Meantime, Gene Autry's "I'm Back in the Saddle Again .... " is humming in the background of my mind " ... Back Where a Friend is a Friend ...." - as well as Willie Nelson's "Crazy."
 

Alas, both Jon Stewart and Stephen Colbert continue on hiatus for a second week to remind us of this:

http://www.huffingtonpost.com/2009/04/15/gov-rick-perry-texas-coul_n_187490.html

"Gov. Rick Perry: Texas Could Secede, Leave Union."

But he said this before he got his new glasses, which not only made him smarter, but perhaps has a Google Glass variation to diminish future "OOPS!" moments.

[Note; Have we heard from Sen. Rand Paul his views as an ophthalmologist on Rick's new glasses? Or is Rand saving this for the GOP debates if he and both Rick are there to entertain for 2016 GOP presidential sweepstakes?
 

Back in 1951 in law school the Criminal Law course did not provide much about Grand Juries and the elective Criminal Procedures was not popular until after Warren Court decisions that conservatives still object to despite provisions in the Bill of Rights. I have in my long practice never been involved directly in Grand Jury proceedings, which may vary from state-to-state. What little I learned came from readings in the press on certain persons who were subject a Grand Jury proceeding as well as from watching the original "Law & Order" TV series that primarily addressed NY law on Grand Jury proceedings. I understand that in NY a subject of a Grand Jury can opt to appear before the Grand Jury to make a statement; I don't recall that the subject opting could be questioned. I'm wondering if Texas Grand Jury proceedings permit an opt in, and if so, why Gov. Perry did not opt in.

How might the Special Prosecutor react to the "High Profile" legal defense team? Will he need more funds to increase staff to address what may be a lot of paper, including discovery and motions, etc. One of the "High Profile" attorneys has been reported to have an active website on the matter. Can we expect leaks all around?
 

You don't find something that this grossly violates the fundamental principles of equality under the law, and, yes, the distribution of powers in a federalist system, by implication. And there's no real textual hook here.

The people here repeatedly explained how the President is on different ground than others for this specific classification, using "real" textual hooks. Likewise, how it can "grossly" cause separation of powers problems. This is part of the Constitution along with federalism.

Equal protection means classifications have to be reasonable. The average person does not have to be concerned with members of the legislator removing them & possibly blocking their ability to serve that sort of position for the rest of their life.

The President is on that level more at risk. Legislative targeting a single person generally is a sort of bill of attainder. But, Impeachment Clause treats certain individuals differently.

Furthermore, and I think Mark Field for clarifying remarks that can be misunderstood, the singular executive, Supremacy Clause etc. provides textual, structural etc. concerns different from a single member of Congress. This is what makes prosecuting the head prosecutor more tricky than prosecuting a single legislator and somewhat different rules might apply.

Using text and other means of constitutional analysis (structure etc.), people here have made a case. The singular executive with executive power is a hook. And, as MF notes, the ability of one state to interfere with POTUS to "grossly" interfere with "the distribution of powers in a federalist system" is also present.

I think there is room for debate & as Mr. W. notes, the impeachment clause alone (w/o looking things at a whole) isn't enough (as a I said, judges have been prosecuted before impeachment).

The general sentiment at the time of U.S. v. Nixon & before might be wrong -- gs sometimes is -- but it is not as patently ridiculous as Brett takes it to be.

More rebuttal, less adverbs.



 

This comment has been removed by the author.
 

edit: I "thank" Mark Field.

Until we get a murderer in the White house

Some think we already had one (various examples might be given).

Mark Field shows how criminal prosecutions -- by a single state for the POTUS of all 50 -- can be abused. MF doesn't claim his path is painless. But, either way leads to theoretical problems.

If Congress risks public safety by leaving the murderer in office for a few years, is the possibility one state will convict (and over Congress' wishes, the President will be allowed to be seized) that much likely to save the day?

On balance, there is more likelihood of wrongful state action (50 chances) than the Congress refusing to remove the murderer, allowing him/her to stay in office a few more years. Or, some other method (such as pressure to resign) being successful.

And, again, there being no statute of limitations for murder, the President still can likely be prosecuted later.
 

This reeks worse and worse.

Rho Chalmers, who disclosed to the Houston Chronicle yesterday that she was a member of the grand jury that indicted Texas Gov. Rick Perry, was an active delegate to the Texas Democratic Party convention during grand jury proceedings...

More troubling, however, is the fact that Chalmers attended, photographed, and commented on an event with Democratic state Sen. Kirk Watson while grand jury proceedings were ongoing. Watson was a witness in front of the grand jury.


http://mediatrackers.org/national/2014/08/20/perry-grand-juror-active-democratic-party-delegate-jury-proceedings
 

Gerard has a subsequent post at the CO Blog on "one" vote for each member of the Senate under Article I, Section 3, and points out no similar requirement for the House members under Article I. But more relevant to his post here is a portion of Section 3 on the Senate's impeachment role:

"Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law."

Comments at CO include from Brett and Joe. I have not been successful commenting at CO since it changed the comment steps.

Joe makes a point about grand juries. In earlier comments here, I made several comments on the Grand Jury in Texas and Gov. Perry's "High Profile" defense legal team. No one took the bait, perhaps realizing a little tongue in cheek. In any event, perhaps Joe could elaborate on his grand jury point here.

As to Brett, his comment is along the lines he has expressed here. But the quoted provision is not necessarily that clear. What if the party is not convicted by the Senate; in that case the portion beginning with "shall nevertheless" may not come into play. And it might, even with a conviction, suggest that the "shall nevertheless ... " actions would be deferred while the impeachment proceedings are pending. Perhaps a separate question is the vulnerability of an "officer" subject to impeachment but whom the House does not take impeachment action against, to the courts, federal and/or states for certain alleged crimes by that "official" while serving as such.

Consider the following movie plot:

The President dies under suspicious circumstances. The VP takes over the role of President. The suspicion is followed up and it raises a possible role in the death by the then VP, now serving in the role as President. The evidence accumulates and the House votes to impeach the now President for his role in the death of the President he succeeded to under the Constitution. The impeachment trial before the Senate has to address the technicality that the now President is accused of action when he served as VP, not as the now President. Assuming this technicality is reluctantly "accepted" by the Senate such that there is no conviction, is this a "stay out of jail card" for the now President even after he leaves that office (assuming he is not elected for a full term for who knows what reasons)?

Please add to this plot which is, as far as I am concerned, open without any rights reserved. Throw in a scenario of the President being killed by the VP in the latter's residence after the former allegedly accused the latter of having sex with the former's wife, the latter allegedly acting in self-defense pursuant to Heller.
 

The link our CO gasbag provides includes a link to:

http://www.chron.com/news/politics/article/Grand-jurors-deny-politics-played-role-in-Perry-5698925.php

"Grand Jurors deny politics played role in Perry indictment"

Is our CO gasbag showing his chops as a criminal lawyer hoping to join the "High Profile" legal defense team for Gov. with his skills honed in the Mile High (even higher since 1/1/14 with recreational you know what, State of Mind) to Texas?

Of course, things that are not quite illegal can also reek. Consider the problems of several governors and former governors across the country, including both Republican and Democrat. Our CO gasbag as self-proclaimed premiere DUI legal expert in his mountaintop community has not commented on the District Attorney that Gov. Perry wanted removed from her office because of her DUI incident to which she eventually pleaded guilty. Eugene at VC came up with legal problems with the indictment based upon the statute involved and he didn't make the "Hight Profile" team, assuming he was looking for it.

So let this play out some more. Either way it goes, it all reeks.

Speaking of what reeks, meanwhile back at the Ranch ....
 

Shag:

Do you have any concept of the odds against this Democrat operative randomly ending up on the grand jury hearing these bogus charges against Perry?

Seriously, is there anything you would find objectionable if performed by Democrats? Anything at all?

Issuing law by decree?

Refusing to enforce the law?

Abusing the IRS and other agencies to harass political opponents?

Abusing the power of the DA to criminally prosecute political opponents for felonies that do not exist?

I thought not.
 

Our CO gasbag's response begins with this:

"Do you have any concept of the odds against this Democrat operative randomly ending up on the grand jury hearing these bogus charges against Perry?"

I don't know what the odds are. But our CO gasbag seems to be suggesting some impropriety but he does not cite evidence in support. And he makes the assumption of "bogus charges." Well, our CO gasbag, based upon his concept of odds, but odds are not evidence, and "bogus charges" remain to be determined, demonstrates his state of mind is political, not lawyerly, indeed, rather "bogus."

And of course he follows with "straw horses" of further questions with innuendo reflecting his political views. Today is liberal lunch day and perhaps later I may - or may not - address these additional questions and innuendos.
 

BD: "Do you have any concept of the odds against this Democrat operative randomly ending up on the grand jury hearing these bogus charges against Perry?"

Shag: I don't know what the odds are. But our CO gasbag seems to be suggesting some impropriety but he does not cite evidence in support.


Those odds are the 12 members of that grand jury / the jury eligible population of that city. These insanely long odds are circumstantial evidence that she was not placed n that grand jury randomly. Have you ever tried a case in court?

I am not engaging in innuendo. I am directly accusing you of supporting unconstitutional, illegal and criminal acts committed by your political party to harm political opponents. Show me I am wrong.
 

Seriously, is there anything you would find objectionable if performed by Democrats? Anything at all?

Issuing law by decree?


Not sure to what you're referring.

Refusing to enforce the law?

I assume you're referring to DACA, which is part of the prosecutoral discretion that all Presidents enjoy. This type of deferment of enforcement has been used by all Presidents since at least Reagan. And it has been found constitutionally valid by SCOTUS.

Abusing the IRS and other agencies to harass political opponents?

Actually, the White House had nothing to do with the "IRS scandal". Further, progressive groups were targeted as well.

Abusing the power of the DA to criminally prosecute political opponents for felonies that do not exist?

Again, this isn't the DA that brought the indictment. It is a Special Prosecutor (who was appointed to the US Atty's office by G.H.W. Bush) who was appointed by a Republican judge after the Democratic officials in Travis County recused themselves to avoid the appearance of a political motive.

Other than that, you're spot on.
 

"Actually, the White House had nothing to do with the "IRS scandal"."

Yes, of course. That's why so many hard drives had to 'crash' in such a short period, and their backups be deleted without first being used to restore onto new hard drives. Because there was nothing incriminating in the emails thus destroyed.

"Further, progressive groups were targeted as well."

You're just repeating a thuroughly debunked liberal talking point. A few "progressive" groups got investigated, they all got approved quite quickly without any special questioning. While 100% of conservative groups got investigated, they were all subject to intensive and often illegal questioning, and the whole process stretched on past the election. Many never got approved OR rejected.
 

Our CO gasbag with this:

"I am not engaging in innuendo. I am directly accusing you of supporting unconstitutional, illegal and criminal acts committed by your political party to harm political opponents. Show me I am wrong.""

shows once again he was not an English Major - or Minor - with his lack of understanding of innuendo. And I don't have the burden of proof regarding his un-lawyerly of now directly accusing me of supporting certain things, which certainly contain innuendos. The archives of this Blog well demonstrate his partisan views with the Bush/Cheney 8 years that ended with their 2007-8 Great Recession, not to speak of two wars, two tax cuts for the wealthy, unpaid for, etc, one of which wars was based upon lies and the other not necessarily that much better.

By the Bybee [expletives deleted], our CO gasbag has not expressed his views on the DA's DUI conviction with a guilty plea. Perhaps he thinks a DUI conviction constitutes malum in se rather malum prohibitum. If the former, his current and prospective DUI defendant clients might be interested.

Michael Smith has addressed the other questions that I did not have time for as I was preparing for the liberal lunch, which turned out great as it was Restaurant Week (a sort of subsidy). So kudos to Michael's responses and especially his closing:

"Other than that, you're spot on."

As to Brett's response to Michael of reciting liberal talking points, Brett continues to spout his talking points repetitiously as a 2nd A absolutist AND a self-proclaimed anarcho libertarian. Where is the proof of the Obama role in the alleged IRS scandal? For the real IRS scandal, Brett might read that Chapter 1 had earlier cited "The IRS Under Siege." Of course Brett is not a lawyer and may not understand evidence from shinola, odds and rumors and innuendos, etc,so he has some excuse for his simpletonian interpretations of the Constitution, whereas our CO gasbag touts himself as the premier DUI defense criminal attorney in his mountaintop community but does not provide evidence, relying upon rumors, innuendos, etc.

Meantime, back at the Ranch ....

 

BD: Issuing law by decree?

MS: Not sure to what you're referring.


Rewriting TARP to nationalize GM/Chrysler and to restructure subprime loans, bankruptcy law to allow a sub rosa sale of assets belonging the the GM/Chrysler creditors for pennies on the dollar, tax law to grant the newly nationalized GM/Chrysler a decade long tax holiday not permitted for companies who go through bankruptcy, immigration law to issue work permits to Millennial illegals, and Obamacare in too many ways to list without writing a book.

Refusing to enforce the law?

Immigration law and Obamacare.

I assume you're referring to DACA, which is part of the prosecutoral discretion that all Presidents enjoy.

Prosecutorial discretion is declining to prosecute individual cases with technical violations of the law and mitigating circumstances, not refusing to enforce the law against millions in a set age group to buy votes.

This type of deferment of enforcement has been used by all Presidents since at least Reagan.

Nothing remotely like this has ever been done before.

Abusing the IRS and other agencies to harass political opponents?

Actually, the White House had nothing to do with the "IRS scandal". Further, progressive groups were targeted as well.


I said Democrats, not Obama and, until there is an actual criminal investigation with access to all the evidence that the Democrats have not yet destroyed, the White House is hardly exonerated.

Abusing the power of the DA to criminally prosecute political opponents for felonies that do not exist?

Again, this isn't the DA that brought the indictment. It is a Special Prosecutor...


And special prosecutors use the power of the DA.

(who was appointed to the US Atty's office by G.H.W. Bush) who was appointed by a Republican judge after the Democratic officials in Travis County recused themselves to avoid the appearance of a political motive.

Bush 41 and 43 often appointed predatory Democrats to positions in the bureaucracy. See Lois Lerner.

No honest special prosecutor enforcing the law as written would have even sought this indictment. This is not even a close question. The SP is taking it from all sides.

Seriously, is there anything you would find objectionable if performed by Democrats? Anything at all?

This question appears to apply to you as well.
 

Shag:

In short, there is no type of malfeasance you find objectionable when Democrats do it.

Don't worry, you are hardly alone among Democrats.
 

I'll just respond to one of your comments because, really, you don't know anything about the law and little about history:

Rewriting TARP to nationalize GM/Chrysler and to restructure subprime loans, bankruptcy law to allow a sub rosa sale of assets belonging the the GM/Chrysler creditors for pennies on the dollar, tax law to grant the newly nationalized GM/Chrysler a decade long tax holiday not permitted for companies who go through bankruptcy . . . .

The bailout of the auto industry was absolutely authorized by TARP and the entire bailout of both companies was upheld by the courts.

And I'm glad you brought that out, because it was just announced today that US auto production is at a level not seen since 2002. So, you know, thanks President Obama.
 

Our CO gasbag with this:

"Bush 41 and 43 often appointed predatory Democrats to positions in the bureaucracy. See Lois Lerner. "

is more of his innuendo particularly with the adjective "predatory." Our CO gasbag suggests that the Bushies did so with knowledge of the "predatory" qualities of such alleged Democrats. Of course our CO gasbag fails to provide evidence that Lois lerner was a Democrat at the time of a Bush appointment. And our CO gasbag fails to identify by name others the Bushies "often" so appointed. Once again our CO gasbag throws crap against the wall with his automatic RIl* style.

*Res Ipsa Loquaciousness
 

This comment has been removed by the author.
 

Apt cartoon:

http://static.tvtropes.org/pmwiki/pub/images/Broccoli.png

Moving on ...

The 14A article posted is informative and has cameos by more than one Balkinization writer.

It is pretty long page-wise but sort of like a student using formatting to stretch, it really isn't as long as it looks.
 

Michael:

The bill creating the TARP fund expressly appropriated the money for Treasury to buy up bad home mortgages. Obama violated/rewrote the law by using TARP as a slush fund to nationalize Chrysler/GM and to restructure subprime home mortgages (HARP). No one had standing to challenge this outlaw socialism in court. The Democrats controlled Congress and were hardly going to impeach The One.

You are probably thinking of the bankruptcy court farce ordering the sale of Chrysler/GM assets to the government. I detail this long and complicated scam in my book. For these purposes, suffice it to say that the Obama administration successfully blackmailed the bankruptcy court to authorize a normally illegal sub rosa sale of Chrysler/GM assets owned by the secured creditors to the government by threatening to stop illegally spending TARP money to support the automakers and forcing them out of business.

Obama could have gone to Congress to provide a bridge loan guarantee to Chrysler/GM like Carter did for Chrysler with the requirement that the automakers go through bankruptcy restructuring to strip away their enormous UAW liabilities.

Instead, Obama looted the taxpayers to buy and give away several billion in automaker assets to the UAW and Fiat, covered UAW liabilities for 3-4 years, subsidized battery cars, and then lost another $14 billion in the stock sale.

If private investor like Romney did this with his clients funds, he would be in prison for decades.

Does any of this theft and law breaking at all bother you?
 

Riddle me this, Batman: Which President created the auto bailout program under TARP?

That's right: George W. Bush
 

Michael:

I do not let Bush off the hook.

It was bad enough that he and the Democrat Congress created TARP over the opposition of the GOP minority, which was never used for its stated purpose.

Bush started the law breaking by making bridge loans to the automakers out of TARP in December 2008 because the Democrat Congress refused to enact a loan guarantee with a bankruptcy requirement that I suggested above. The unions had bought the Democrats in 2008 and were collecting.

BTW, I failed to note above that Obama committed literal theft by giving away several billion in equity interest in Chrysler/GM purchased by the taxpayers to the UAW and Fiat. This was all government property.

Imagine George W. Bush using TARP to buy Exxon and then giving half the stock away to Haliburton.

This is your progressive/socialist government at work.
 

Yeah, it's just terrible how Obama saved the automobile industry.
 

BB:

I can "save" any failing business in America looting the taxpayers to pay three times the value of the business.

GM and Chrysler have the same union liabilities which sank them before. They will fail again.
 

They will fail again.
# posted by Blogger Bart DePalma : 2:34 PM


Only if we're dumb enough to elect a Republican president again.
 

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