Balkinization: Why Trump is Not a Threat to the Rule of Law (More than Already Exists)

Comments:

Given Trump's authoritarian personality, and extent to which that factors into his appeal (see, e.g., Paul LePage today), I see no reason to give him the benefit of the doubt on this.

I also think you're pretty sanguine about the stabilizing factors in a government and society. We've seen plenty of instances in which those collapsed very quickly. That's not to say such a thing would happen here, but it is to say that we shouldn't dismiss the chance that it might.

That said, yes of course: people who vote for Trump are responsible for putting him into office (if they do); people who collaborate with him are responsible for that collaboration. That's pretty cold comfort to the victims.

# posted by

Mark Field : 7:48 PM

To the degree the critics are exaggerating ("stripping" etc.) fine. The better concern regarding his "quip" is the norm of not prosecuting your predecessor is in place for various reasons. But, Trump's recklessness, including threats to go after those who criticize him or to bend the rules to get things done, etc. can very well more than usual threaten the rule of law.

# posted by

Joe : 7:57 PM

I'm not sanguine, Mark, though I admit the post is easier to write because I'm confident Trump is going to lose. Rather, my point is that problems with the rule of law are already significant having nothing to do with Trump. And I'm suggesting that liberals are inclined to downplay rule of law transgressions by "our side" while decrying rule of law threats from political opponents.

# posted by

Brian Tamanaha : 9:11 PM

"His reference to the special prosecutor recognizes that legal processes are required for her to be indicted, so he was not suggesting he would strip power from legal institutions. "

But his comment "you'd be in jail" certainly signals he, the boss of those enacting the process, has pre-judged, and favors, the result. That in itself strikes me as a dangerous precedent, but expected from one as ignorant, undisciplined, and very likely addicted to cocaine (see his incessant sniffing, his inability to stay still, his angry outbursts, all symptoms of cocaine abuse, which is common in the wealthy Manhattan circles he runs in) as Trump seems to display.

# posted by

Mista Whiskas : 11:29 PM

Ah. You are sticking with that cocaine reference. The sniffing thing seems recent. I don't recall that being an issue during the Republican debates.

Anyway, there isn't really a need for this concern for "downplay," especially given recent discussion about the injustice of the criminal justice system as a whole by BLM etc. Not just when Republicans run police and justice systems. As a whole. Criticism of Obama repeatedly by liberals on not closing Gitmo, drone attacks and other issues. And so on.

This doesn't change that Trump specifically has a special likelihood for the reasons given to have rule of law concerns. Please don't generalize there regarding 'political opponents' though obviously there is going to be some bias toward fellow travelers. Trump remains specifically a problem. It's wrong not to note this.

# posted by

Joe : 1:04 AM

" The better concern regarding his "quip" is the norm of not prosecuting your predecessor is in place for various reasons."

I happen to think they're bad reasons. As in, "I'm going to do illegal things, I shouldn't break this tradition or maybe my successor won't overlook them himself." We'd be in a much better position if Nixon hadn't been pardoned, but instead made an example of.

There are good reasons not to criminalize normal policy differences. Not criminalizing violations of ordinary law? The case for Presidents and their subordinates being able to get away with burglary, or evading FOIA, is much weaker. These are not the kinds of crimes an administration has to commit, and they're not just a disagreement over policy.

Then we get to not criminalizing violations of ordinary law after a member of a previous administration has left the administration. Destruction of public records, say. That was an impressively mild slap on the wrist Sandy Berger got, stealing records from the National Archives. Hate to think how I'd fare if I did something like that. (Thought I was talking about Hillary, didn't you? That's because you know she broke that law.)

No, I'm sorry, a policy of not prosecuting members, or even former members, of previous administrations, for acts that everyday citizens would be prosecuted for, is kind of definitively an abandonment of the rule of law. Might even be argued to violate the nobility clause.

# posted by

Brett : 5:50 AM

Now, specifically Trump. There are a number of reasons to believe Trump might *want* to break the law as President.

I'm getting mail from AARP, and no President during my adult life has failed to break the law as President. That's a pretty dependable track record, I'd be shocked if it were broken by the next administration. Complying with the law when you know it's not going to be enforced against you takes a stronger set of scruples than most people who run for President possess. So, just the general odds, not getting into Trump as Trump, suggest he'll do things you or I would be jailed for.

Just as true of his opponent, of course. Even if we didn't have particularized reasons to expect Clinton to break the law, we'd expect her to.

Particularized track record of breaking the law? Setting aside the "Democratic AGs prosecuting the Republican candidate in October" factor, which is a big factor, Trump doesn't have a particularly bad record in this regard. On paper. What has he been convicted of, as yet? And he's 70...

Now, you could argue he just hasn't been convicted. But I am confidently assured that not having been convicted of a crime is, no matter how much public evidence of guilt may exist, proof positive that one is innocent. Are you going to argue that this rule only applies to people whose last names begin with "C"? No, I didn't think so.

So, no track record of breaking the law as a private citizen, RIGHT?

# posted by

Brett : 6:20 AM

Does Trump have a record of being able to subvert institutions? Not that I know of.

Does he have a record of people taking the 5th, fleeing the country, or even going to jail, to not testify against him? Not that I know of.

Has Melania Trump ever met with the Attorney General in an empty plane to discuss the kids? Not that I know of.

Has he been plagued with scandals all his life, that mostly just end with missing evidence and witnesses refusing to talk? Not that I know of.

Now we get into the question of what forces, (Setting aside fear of prosecution by subsequent administrations, that having been taken off the table.) would restrain him in office.

Will the general bureaucracy be staffed with members of his own party, who would, out of partisan loyalty, assist him in crimes? Nope.

Will he have a lot of allies in Congress who would be determined to protect him if he did something awful? Nope.

Wait, maybe the media love him, and will spend all their time covering up anything he does, rather than digging for dirt? Nope.

Bottom line, I think Trump is going to be, whether he wants to or not, a particularly law abiding President.

# posted by

Brett : 6:31 AM

I see. Brett is using a thought experiment to show the possible perils of using a double standard when applying things to your side. That's appreciated.

Brett says Trump is "horrible," but it's fairly clear he likes various things about him, including the "no you did it" style of speaking. The professor as does each reasonable person realizes that there is going to be problems here. One concern is a certain level of behavior, including not out of the blue, but based on Trump in particular's career, personality, words and deeds.

He has a particularized history of breaking the rules, both in his personal life and professional life. Actually, he did have a history of taking the 5th -- basically gratuitously, we know he took it to avoid admitting to an affair actually. We are concerned about him becoming POTUS, which has a lot of power, but he has "subverted" institutions in his personal life & there is repeated evidence (including lawsuits and investigations showing it) he violated basic rules of good business relations. Which is what he is -- a businessman.

"Will the general bureaucracy be staffed with members of his own party, who would, out of partisan loyalty, assist him in crimes? Nope."

Why not? POTUS is the head of the executive department. He and his people stocks the bureaucracy there. Chris Christie, of all people, will have an important role here unless his plans change. Other than partisan blindness, why say this? Trumpiness? You deep down know it's false, but want it to be true?

Will he have a lot of allies in Congress who would be determined to protect him if he did something awful? Nope.

Why not? He has people NOW, when he's NOT president doing that. Protecting him. You have women members of Congress even after the tape came out saying they will vote for him. Why in the heck, given what you know about how politics work, would they not do so after he is ELECTED PRESIDENT with the power of the office and a strong base of supporters behind him? If it was a Democrat, you would not be so blind.

Wait, maybe the media love him, and will spend all their time covering up anything he does, rather than digging for dirt? Nope.

Hillary Clinton and Bill Clinton has been subject of press coverage of all their issues for decades. The media repeatedly has stated how people don't like Clinton, how "both" candidates have problems etc. Trump gets loads of press and has a station in particular when he can go and find one or more (Sean Hannity) friendly interviewers.

And, ignore his ignorance, boorish behavior, words and deeds all you want. Thinking Clinton or "the left" is horrible doesn't make HIM in particular, as compared to a range of alternatives (who members of his own party on down realize is particularly a problem) not a particular problem. OTOH, ideological blindness is a thing.

# posted by

Joe : 9:32 AM

Leaving aside Brett's fantasies that Trump will be "law-abiding" or "constrained", I actually agree with him, and possibly with Prof. Tamanaha, in part on the failure to enforce criminal law.

The Constitution expressly contemplates the potential for criminal prosecution of public officials: "Judgement 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, judgement and punishment, according to law." Emphasis added.

I do think, though, that we have to consider the context here. In 1787, pretty much the only crimes there were -- and certainly the only crimes which would constitute "high crimes and misdemeanors" -- were malum in se crimes. So if we're going to speak of enforcing criminal law against public officials, I think we have to limit ourselves to those cases in which the offense would be both malum in se and grounds for impeachment. That rules out prosecutions for things like failure to comply with FOIA or using a private email server. It also leaves in place the norm that we don't prosecute our defeated opponents in the vast majority of cases.

# posted by

Mark Field : 9:39 AM

"definitively an abandonment of the rule of law"

It was a historical policy, so if it is an "abandonment," it was done quite some time ago. We also aren't even talking about something done purely in a private character, such as if a member of government beats someone up. Plus, a complete ban on that sort of thing is probably not in place -- at least, in state government there are probably various examples. Ditto in federal government, such as someone convicted of corruption or something. Plus, the Constitution itself leaves open conviction after removal by impeachment. OTOH, that would be a clearer case.

Anyway, on the specific thing Mr. W. as well as others with more expertise has shown in detail that "for acts that everyday citizens would be prosecuted for," she was correctly not indicted from what evidence we have available. As Mr. W. notes, his presumption there (especially as compared to a suggestion he would make sure a "correct investigation" or some similar language) is problematic.

But, he simply shows no basic ability to act like a POTUS or mayor for that reason should act. This doesn't change simply because one of his competitors in a person's mind doesn't either.

# posted by

Joe : 9:41 AM

I wrote my comment as Mark Field did his and you can see overlap.

"I think we have to limit ourselves to those cases in which the offense would be both malum in se and grounds for impeachment."

I don't. I'm not an originalist and don't necessarily think (especially if you are talking about lower level officials still open to impeachment) only those types of crimes should be open to punishment. The correct line there will at times be unclear and certain other crimes still will be important to enforce against in relevant cases. And, I assume we aren't just talking about specific people who lost to the new POTUS at the polls, including people term limited out (e.g., Obama).

Realistically, part of the issue here is that there are a lot of fine lines and there is a pragmatic reason as well to not target members of the old administration. Other countries with a worse record government crimes recognized this and it even probably has a Greek tragedy feel to it. So, yes, it isn't some complete rule and it can be confused if phrased in absolute terms. But, it's a thing.

# posted by

Joe : 9:52 AM

My comment as worded did sound like an originalist argument, which I don't intend, so I'll clarify.

I do think we start with the historical background, but I also think we should account for (a) policy considerations (not becoming a banana republic); and (b) historical practice. Both of those factors suggest an even narrower range of prosecution than an originalist case might. Trump's comments at the debate were unjustifiable even under the (potentially) somewhat broader originalist argument.

# posted by

Mark Field : 10:11 AM

"I do think, though, that we have to consider the context here. In 1787, pretty much the only crimes there were -- and certainly the only crimes which would constitute "high crimes and misdemeanors" -- were malum in se crimes. So if we're going to speak of enforcing criminal law against public officials, I think we have to limit ourselves to those cases in which the offense would be both malum in se and grounds for impeachment"

While the lower classes are still subject to prosecution for both malum in se, AND Malum prohibitum offenses. Nice privilege, if you can get it.

Definitely a nobility clause problem here, if we're going to say office holders, and former office holders, are not going to be subject to prosecution on the same basis as everybody else. That's some privileged class you're creating, there. Just tossing the idea that everyone is equal before the law out the window.

Oh, and I think we're definitely going to disagree about whether destruction of public records under subpoena is merely a malum prohibitum offense. These were documents which were, legally, subject to FOIA, and government property. Destroying them deprived everyone who was legally entitled to look at them the ability to do so, and the crime only was exposed because people DID want to look at them.

No, not malum prohibitum at all.

# posted by

Brett : 10:19 AM

Brett, prosecutorial discretion is alive and well for 'little guys' too. It happens all the time. IIRC no one could cite any (maybe one in fifty years?) case directly analogous to Clinton's that ended in a conviction.

# posted by

Mista Whiskas : 10:39 AM

Brett, your comment is incoherent in light of the express language of the Constitution and the available public meaning of the time (that is, under an originalist argument that you claim to demand). Yes, public officials have privileges. Even those detestable Members of Congress can't be questioned for anything they say in the course of duty, nor can they be arrested while traveling to or from Congress. As the Framers understood, some such exceptions are essential to any functioning government.

Also, you don't understand what "malum in se" means, so your argument about "destruction of public records" (which is factually false anyway) is legally wrong.

# posted by

Mark Field : 11:04 AM

The "Big Crime" principle, eh? If you commit a crime so big nobody else has ever been prosecuted for it, you can get off because there are no precedents for prosecuting people for it?

Although "little people" are getting prosecuted for what Clinton did, only for having done it on a much smaller scale. In fact, a fair number of people are now raising what's being called the "Clinton" defense.

It's not "discretion" if it's absolute, and it's not discretion that's being proposed here. It's a flat rule.

# posted by

Brett : 11:07 AM

Although "little people" are getting prosecuted for what Clinton did, only for having done it on a much smaller scale.

Point to one. With all the same relevant facts.

# posted by

Mista Whiskas : 11:10 AM

"As the Framers understood, some such exceptions are essential to any functioning government."

And they knew how to write them explicitly into the Constitution, when they thought them necessary.

What we've got here is an unwritten privilege for the Executive branch, that's more extensive than the written privilege the Legislative gets.

Malum in se means wrong in and of itself, rather than being wrong just because it's illegal. You know, like destroying somebody else's property, even if the somebody else is the government.

And you're just delusional if you think none of the emails Hillary had destroyed weren't public records. Flat out delusional. That there were such among the emails she had destroyed has been well established.

# posted by

Brett : 11:11 AM

Brett, that's a ridiculous stretch to get to malum in se. No judicial understanding of that concept would encompass what you're talking about. I mean, under that theory draftees burning their draft cards are committing a malum in se crime.

You know, I really think the 'party of personal responsibility' should take some in this case. I myself think there could have been a more proper stink about what Hillary did. From the beginning this should have been framed as a violation of at least the spirit of FOIA laws (laws which traditionally have been championed by liberals). But no, Hillary haters on the Right couldn't be satisfied with that. It's at best a misdemeanor after all, and we know that's not enough gravitas to sink the evil Hildebeast, she who murdered Vince Foster and those men in Benghazi with her bare hands y'know. So the push had to be an obscure almost unused and generally fishy felony charge-because t-shirts and bumper stickers with 'felon' and 'Hillary for prison' sell much better to the base than 'possibly a misdemeanant and almost certainly in violation of the spirit of a sunshine public records law.' And so to most of the public the charge looked like just one more cry wolf (nay, wolf isn't sensational enough, let's say dinosaur!) move by the hard core right, and it's largely sloughed off. You guys have created Clinton's Teflon coating as surely as the hard core left did for Reagan. Own it.

# posted by

Mista Whiskas : 11:27 AM

"All" the same relevant facts is doing a lot of work there. She's supposed to be protected by the fact she did it worse, on bigger scale?

How about Jason Brezler?

# posted by

Brett : 11:32 AM

I'm fine with Mark Field's follow-up post.

I'm not comfortable with some fine line there; so Brett's confusion on legal terms just comes off as gratutious. The Constitution does provide complete immunity in narrow cases. The immunity at times is implicit but if Brett, e.g., thinks current state immunity law that goes far beyond express language is wrong, I'm not going to disagree too much.

Brett is also using the patented "so you are saying" bit about the "she's supposed to" line where Mr. W. is not exactly saying that. Thanks again for your examples. The facts in that case, including a military official going against orders, are different. Meanwhile, a career independent minded public official who knows the details and law much more than you et. al. (e.g., conservative experts of this field of law) have explained why HRC should not be prosecuted.

The rule of law has been followed.

# posted by

Joe : 11:55 AM

I'm not talking about scale. Now how about that cite? I remember we did this before, and Comey referenced it too, Espionage Act cases where there was not an admission of guilt or an attempt to intentionally give classified docs to another country are very, very rare.

And there's a reason for that: Courts have hinted the law is so broad and vague it might not survive constitutional review, especially if it were used in a case without a strong showing of intent.

It's a rather mundane, reasonable answer though, much less exciting than elite ridden conspiracy stuff. So I can see where it may not appeal to you.

# posted by

Mista Whiskas : 11:55 AM

Jesus Brett, this is why it's so hard to take your legal conclusions seriously. That's a discharge case, not a federal prosecution.

# posted by

Mista Whiskas : 12:05 PM

Gerard:

The public record available through the FOIA suits and the FBI investigations provide more than a prima facie case to go to indict Clinrton for violating three provisions of the Espionage act for illegally storing classified information in unsecured locations and providing the same to uncleared persons (at minimum her IT and legal teams); for four counts of perjury before Congress and likely multiple counts of lying to the FBI; and obstruction of justice for destroying emails under a congressional protection order and the subject of multiple FOIA suits.

The current FBI and Justice Department are trashing the rules of law by excusing Clinton for crimes for which less politically connected people like Martha Stewart (lying to the FBI) and multiple service members (bringing home classified materials) have been prosecuted and imprisoned.

Trump suggested that he would appoint a special prosecutor to look at Clinton's apparent crimes, which is what you do to maintain at least the appearanace of impartiality in the investigation. Trump's final comment "that's because you would be in jail" is his personal conclusion that a special prosecutor would gain felony convictions of Clinton. This is enforcing the rule of law.

Your other examples of not following the rule of law are not analogous.

Employing SERE coercive interrogation techniques which we routinely perform on our service members (including my brother) against unprivileged prisoners of war was not torture as defined under the U.S. Code as the intentional infliction of severe pain. Whether or not to employ them was a policy decision.

I have yet to hear anyone actually offer evidence and criminal law to support an indictment of individuals in the financial services industry for causing the mass default of the government regulator directed and subsidized subprime home mortgage market. In the handful of cases Justice did prosecute, more than one of the convictions they obtained were reversed on appeal for extending the law past the bounds of the text.

I have also not seen anyone actually offer evidence and criminal law to support indictment of those involved in the NSA metadata program, which was approved multiple times by the FISA court.

What we have is the first time a felon has run for president when the evidence is in the public domain (as opposed to Dick Nixon and Bill Clinton, where the evidence came out after their reelection).

I am curious. As a professor of law, do you plan to vote for a felon for president?

# posted by

Bart DePalma : 12:06 PM

It's important to note Bart has no experience in federal prosecution and James Comey has decades, and that while Comey has a record of integrity Bart's partisan leanings have led him to say more than a few demonstrably and at times laughably erroneous legal and political conclusions.

In addition, let's note Bart's almost postmodernist torture of the English language in his arguing that holding someone down and simulating physical drowning in them is not intentional infliction of serious pain. The entire point of SERE training is to simulate torture tactics of the enemy.

# posted by

Mista Whiskas : 12:13 PM

Brian Tamanaha wrote the post.

# posted by

Joe : 12:15 PM

Joe:

Oops. My apologies to Gerard and I pose the same question to Brian.

# posted by

Bart DePalma : 12:34 PM

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# posted by

Bart DePalma : 12:58 PM

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# posted by

Bart DePalma : 12:59 PM

Mr. W:

We expect lay jurors to understand the elements of criminal offenses. If you actually bothered to read the law, I suspect a former law student such as yourself could understand the elements of the crimes of which I have accused Clinton of committing.

The Espionage Act provisions are rather simple and a special prosecutor would only really need to prove the mens rea element and could do so circumstantially with evidence of Clinton's ongoing course of conduct.

The perjury and obstruction of justice provisions can be more difficult to prove. For example, Bill Clinton argued that his lies were not material to the legal proceedings in which they were made. Hillary Clinton does not have this defense because the congressional preservation order and the FOIA suits were all directed at the thousands of work related emails she ordered to be destroyed.

BTW, a competent prosecutor would also charge Clinton, her attorneys and her staff with conspiracy to commit obstruction of justice because they worked together to destroy the emails.

An aggressive prosecutor would also explore whether Clinton and her staff violated the denial of honest services provision of the wire fraud statute.

# posted by

Bart DePalma : 1:00 PM

Again, you have be experience in what you're talking about. And even at a layperson's level you can't refute that Espionage Act convictions without an admission of guilt and showing of intent to transfer to foreign hands are as rare as the endangered species we are discussing elsewhere would be under your proposals.

# posted by

Mista Whiskas : 1:04 PM

No experience

# posted by

Mista Whiskas : 1:06 PM

Mr. W:

Every prosecutor (including myself for five years) routinely tries and convicts defendants without admissions of guilt or proof of intent when intent is not an element of the crime, which it is not under the one provision of the Espionage Act the FBI pretended to investigate.

# posted by

Bart DePalma : 1:09 PM

# posted by

Mista Whiskas : 3:19 PM

Back to the big crime defense. Prosecutions like this are rare as hen's teeth, because offenses of this scale are rare as hen's teeth. Usually you're talking a few files, not thousands. A few messages diverted out of the official email network, not all of them.

Even then I'd say, the reason prosecutions are rare is because these violations are usually done to further the interests of the administration in power. So you're using an abuse to justify an abuse.

# posted by

Brett : 3:40 PM

Brett, it's not a big crime defense. Comey's story is that because courts are skeptical of the broad language of this statute prosecutors only tend to use it when there's an admission of guilt, transfer to a for urge power and strong showing of intent. That you can't cite a prosecution under the same law lacking those lends considerable support to his theory. When asked for a cite you pointed to the government dismissing an employee, not a prosecution. That's like in an argument about whether Clay Matthews should be penalized for roughing the passer citing a personal foul call in a basketball game. Just stop digging, it's obvious at this point you're just trying to rationalize a predetermined partisan position here.

# posted by

Mista Whiskas : 4:26 PM

Is the Nixon Watergate Saturday Night Massacre relevant to this discussion? Public reaction cannot be ignored by a President. And consider possibly setting a precedent for future political campaigns with similar threats.

# posted by

Shag from Brookline : 4:37 PM

Mr. W:

Read the damned statute before you post on this subject again. You are confusing Comey's excuses for not doing his job with the actual elements of the crimes.

# posted by

Bart DePalma : 5:14 PM

So if Trump does become president (a chilling thought) and thereafter engages in authoritarian actions, the blame lies with us collectively.

This is true in various respects. (1) People would have voted for him & others would have made him seen as legitimate enough of a choice to make this possible. (2) He would take advantage opportunities and in some ways norms/practices already in place, in part thanks to "us collectively" accepting them to some extent.

But, I'm unsure where this would not occur, putting aside that in various cases world-wide #1 could involve a more narrower group. Even if a place like Iraq, e.g., the lack of rule of law grew up in part because society as a whole determined that a strongman was an appropriate choice, and a continual society-wide act of resistance would not be practical on a cost/benefit level.

It's fine, especially when you are fairly sure he won't win, to remind us about our responsibilities here. Still, there is also individual wrongdoing including in other cases. Some local tyrant might be aided and abetted, but individual blame is present too. There tends to be a mix in these cases.

# posted by

Joe : 5:27 PM

And even at a layperson's level you can't refute that Espionage Act convictions without an admission of guilt and showing of intent to transfer to foreign hands are as rare as the endangered species we are discussing elsewhere would be under your proposals.
Since it was ignored the second time...

Really, Bart, if things are as you say and these aspects don't matter then it should easy for you to cite examples of convictions under the statute lacking this aspect.

# posted by

Mista Whiskas : 5:34 PM

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# posted by

Bart DePalma : 8:58 PM

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# posted by

Bart DePalma : 8:59 PM

Mr. W:

Under the single provision of the Espionage Act the FBI examined, charges were all brought without a confession of guilt and with and allegation of the statutory standard of gross negligence in the charges. Prosecutors cannot allege elements which are not in the statute without the defense filing an immediate motion to dismiss. The cases cited by Comey were then resolved by plea bargain, which requires a plea of guilty. We only have Comey's word that the FBI possessed evidence of the non-existant element of intent.

# posted by

Bart DePalma : 9:00 PM

The fact that Trump keeps doubling down on his extremist rhetoric causes me to treat the OP as a significant example of false equivalence. Not only has Trump continued his call for a "special prosecutor", not only does he prejudge the "case" by calling her "Crooked Hillary" and directly stating that her emails were criminal, but today he called for an investigation into those who failed to prosecute her (unnamed, but presumably Director Comey, perhaps President Obama, maybe Congress generally). These threats to the rule of law are now getting louder and more serious.

# posted by

Mark Field : 9:16 PM

Adding that Trump's rhetoric about the election being "rigged" may not be as direct a threat to the rule of law, but it is one in itself.

# posted by

Mark Field : 10:32 PM

The last point is very important and there has been an ongoing campaign to pervert our trust in the sanctity of elections. Rick Hasen over at Election Law Blog is a good go to for that. It is appreciated that some Republicans are respecting some basic sense of shame on the issue: http://www.politico.com/story/2016/10/republicans-rigged-election-claim-donald-trump-229630

But, as seen by the whole "voting fraud" b.s., only so much.

# posted by

Joe : 11:53 PM

Only in the Democratic mind are safeguards against fraud an attack on the election system because they lower trust in it compared to having no safeguards. I don't think you understand the dynamic here: Every time the Democratic party opposes an election security provision, (Purging voter rolls of inactive voters, checking for citizenship, rejecting absentee ballots if the signatures don't match, poll watchers...) you increase the conviction among Republicans that you're cheating.

If you don't want your opponent to be convinced you've stacked the deck, you have to stop blowing up every time he proposes to cut the cards. That might seem unfair, but it's the real world.

# posted by

Brett : 6:25 AM

Every time the Democratic party opposes an election security provision ... you increase the conviction among Republicans that you're cheating."

"an election security provision" is question-begging, to use that term correctly to mean assuming what is in question. What Brett is saying is that Democrats should join Republicans in denying minorities the right to vote in order to confirm Republicans' false belief that they are not denying minorities the right to vote. I doubt that many Democrats would find that proposal appealing.

# posted by

Henry : 6:48 AM

No, I'm saying you should stop pretending that every election security measure you oppose, (Which is, so far as I can tell, all of them.) is an attack on minority voting rights.

# posted by

Brett : 8:30 AM

So, surprise, surprise, Bart can't cite a single case of conviction with the relevant aspects mentioned lacking. Those aspects are easy to overcome says Bart, so easy that he can't find a single example of it!

# posted by

Mista Whiskas : 10:02 AM

My link provides Republicans who think Trump has gone too far here. This is the ongoing series of Brett trying to make this about "Democrats" while tossing in hyperbole on the argument being made.

Rick Hasen et. al. do not "oppose" things like cleaning up voter rolls, but like regulating guns, there are various sensible ways there, other ways that would wrongly violate rights in the process. For instance, in person voting fraud basically never happens and is not even a good way to cheat if one wanted to do so. But, there are checks there including signature requirements, voting in person means people see you, the threat of criminal action if you are caught (for such low returns) etc. Meanwhile, id requirements besides being unnecessary here have been shown to selectively burden people of certain classes and having a sort of "poll tax," all addressed in the Constitution.

Voting rights however are respected less than gun rights by some people.

# posted by

Joe : 10:05 AM

Brett's position amounts to this: "I hold a false belief. If you refuse to affirm my false belief, that just confirms I can't trust you."

# posted by

Mark Field : 10:13 AM

Mr. W:

Are you really arguing that prosecutors should not bring charges to trial against perps who decline to admit guilt?

# posted by

Bart DePalma : 10:26 AM

"My link provides Republicans who think Trump has gone too far here."

You can easily find Republicans who scarcely make a secret of wanting Hillary elected. A larger number do make a secret of it.

The key dynamic of this race is that the Republican voters dared to nominate a candidate the Republican establishment didn't want. They had their anointed candidate, Jeb, and he lost. Spent a fortune just to lose badly. Him they'd have supported, and demanded that the rest of the party get behind.

But the voters chose Trump. And the Republican establishment are terrified of Trump. They're terrified he's going to end their cozy deal, where they get rich playing the role of incompetent opposition party. They're terrified they'll be replaced with a new Establishment, and left out in the cold.

They're terrified that he might win.

On the other hand, they're terrified that the party's voters will not forget their opposing the nominee. So they're rather skittish about it, mostly content to engage in subtle sabotage.

Then he had the nerve to draw even with her in the polls. That's when both the GOP establishment and the media decided subtle wasn't going to get the job done.

I think Trump is doing pretty well for a candidate who's running against the Democratic party candidate, the media, AND his own party's establishment. Of course, pretty well under those circumstances still has him losing.

It's going to be fun watching the party base go after the party establishment after the election. I don't think the Trump supporters will be as easy to beat down as the Tea party were, even with the Democrats helping.

# posted by

Brett : 10:37 AM

Bart, if successful prosecutions under the Espionage Act in cases where there is no admission of guilt, transfer to foreign power and no strong showing of intent are so easy then you should be able to cite an example. Yet you *cannot.* This demonstrates that Comey and his decades of experience and record of integrity is right about this, and you with none and a record of partisan blundering are not. Whodathunkit?

# posted by

Mista Whiskas : 10:39 AM

" the media"

I hate to rain on the perpetual victim good pity part of the conservatives, but it's clear that Trump has gotten a massive plus from the MSM. When he incompetently had little media organization they widely covered him giving him free press. Even now they drone on about things line Clinton's emails and long refuted conservative memes (which they report as 'many are troubled...'). They are covering Trumps gaffes but he's a gaffe machine, they're hardly 'going after' him, if anything they've been negligent about giving his gaffes the time they deserve because he, not having any sense of comportment and professionalism, has committed so many during his period of fame.

# posted by

Mista Whiskas : 10:47 AM

Hasen on GOP voter fraud efforts seems spot on:

Donald Trump may be out of step with the Republican Party’s traditional stance on some issues, like support for international trade, but he’s right in line with Republican hysteria over voter fraud. Indeed, the threat of voter intimidation and violence that Trump is raising by his irresponsible talk of vote rigging and encouragement of his supporters to go to other polling places is only possible because of years of earlier irresponsible talk. . .

But this should be no surprise, because members of the fraudulent fraud squad have pushed this message for years, claiming that voter fraud is rampant, and that it inevitably helps Democrats. As I pointed out in my 2012 book, The Voting Wars, conservative flame thrower Michelle Malkin warned just before the 2010 election that voter fraud was rampant. But when Democrats faced a “thumping” at the polls, Malkin had nothing to say about fraud. And now she’s at it again, claiming non-citizens will steal the election in Colorado and elsewhere.

There’s a whole industry of fraudsters, such as Hans von Spakovsky and Kansas Secretary of State Kobach who whip up voter fraud frenzies to degitimize Democrats, rile up the Republican base, and fundraise. That’s why the Wake County, NC GOP just sent out a letter saying that Democrats will “stop at nothing and registering dead people or falsifying voter information is simply a ‘means to an end’ for them.”

Here’s what we know about voter fraud. One should never say voter fraud is non-existent. In fact, it happens occasionally with absentee ballots and I’ve long said we need more action to stop it. I’ve also said we need to clean up voter registration rolls to stop registration fraud. What is extremely rare and has not affected any election we know of since the 1980s is impersonation fraud, the kind of fraud state voter ID laws are meant to stop. Yet Republican laws that make it harder to register and vote generally don’t go after absentee ballot fraud but are instead targeted almost exclusively to measures making it harder for those likely to vote Democratic to register and vote.

# posted by

Mista Whiskas : 10:49 AM

Brett's last comment doesn't actually reply to what I was saying but spins to some other hobbyhorse of his. Brett sounds like some politician on a talking heads show.

# posted by

Joe : 10:53 AM

Keep throwing stuff at the wall and hope it sticks. That's the motto Joe.

# posted by

Mista Whiskas : 11:00 AM

I like reading Hasen's blog, but he's a pretty typical 'voting rights activist', in that he's a committed Democrat, and sees no evil so long as the interests of the Democratic party aren't on the line.

# posted by

Brett : 11:03 AM

This comment has been removed by the author.

# posted by

Joe : 11:16 AM

This comment has been removed by the author.

# posted by

Joe : 11:19 AM

Mr. W: "Bart, if successful prosecutions under the Espionage Act in cases where there is no admission of guilt, transfer to foreign power and no strong showing of intent are so easy then you should be able to cite an example."

As soon as the Justice Department and DoD provides me with a complete list of their Espionage Act prosecutions since 1917, I would be glad to provide you with a breakdown.

None of this it relevant, however, to the question of whether the evidence in the public domain provides a prima facie case to bring Clinton to trial for violating three provisions of the Espionage Act as written for storing classified information in unsecured and unapproved locations and for providing that information to uncleared persons.

You do not care about the evidence and the law, though. You are merely parroting Clinton campaign talking points like a run of the mill Democrat flack at the NY Times.

# posted by

Bart DePalma : 12:28 PM

Again, if there were an analogous case the Right right would have dug it up. But they, and you, can't find one. Again, that suggests that cases like Clinton's are not successfully prosecuted, just as Comey said.

# posted by

Mista Whiskas : 1:49 PM

I mean, I can find you cases of successful prosecutions when those aspects are present. But you can't find me cases where they're not. Interesting that, makes one think Comey was correct about the longstanding prosecutorial practice and you're wrong. Perhaps that's chalked up to him being experienced in the area and having a record of integrity, while you're not experienced in the area and are prone to partisan blundering.

# posted by

Mista Whiskas : 1:57 PM

Mr. W:

I provided you with the recent cases of two service members who brought classified information home, which are analogous apart from the facts the evidence against them was far less than that against Clinton and they pled guilty in plea deals.

The sailor who brought home a photograph of his submarine as a souvenir actually offered the Clinton defense during sentencing. The court rejected the defense and sent him to prison for a year.

# posted by

Bart DePalma : 2:02 PM

Cite the case Bart.

# posted by

Mista Whiskas : 2:06 PM

Mr. W:

Here you go.

http://www.washingtontimes.com/news/2016/aug/20/navy-machinist-kristian-saucier-sentenced-over-cla/

# posted by

Bart DePalma : 3:34 PM

Saucier confessed and pled guilty, so, fail.

# posted by

Mista Whiskas : 3:50 PM

OK, that's just total BS. I don't think there's a crime on the face of the Earth where you need a confession and guilty plea to prosecute.

You're just taking advantage of the fact that practically nobody but outright spies would normally violate these laws to this extent. The ones who violate it by mistake are generally mortified. And demanding that the case match Hillary's in every last particular? BS.

# posted by

Brett : 7:38 PM