Balkinization  

Friday, October 14, 2016

Trump IS a Threat to the Rule of Law

Brian Tamanaha

My recent post suggested the New York Times was making too much of Trump's dumb "you'd be in jail" quip. I was wrong.

Comments:

Oh, come on, of course Krauthammer is going to be outraged. Trump could burp and Krauthammer would be outraged.

He's outraged for exactly the reason Trump's supporters cheered. He wants to preserve the status of Executive branch figures as the new aristocracy, not subject to the laws everyone else is. Trump's base wants to end that cozy relationship, and figures that if they'd do hard time for something, so should a President or Secretary of State.
 

This comment has been removed by the author.
 

Brett's legal acumen was displayed when he performed the legal equivalent of arguing that Clay Matthews should have been penalized in a football game because Shaquille O'Neal got a foul called for doing something similar in a basketball game. But he's so certain in his conclusion about Hillary's legal case that of course anyone not agreeing is in his eyes up to something. His certainty is almost perfectly correlated with his ignorance. In that he's much like his preferred candidate!
 

I like that after Trump's first remark many of his defenders, unable to deny he was acting contrary to a long accepted norm, rushed to provide the bullshit that no, that was just a clever remark, he wasn't preordaining anything, he just wanted to start a process. It didn't take him more than, what, a few days to leave those people right in the lurch. Supporting this lunatic and buffoon must be exhausting from the mental gymnastics one must perform as he pulls the rug right out from under them time and again.
 

Brett's:

"Trump could burp and Krauthammer would be outraged."

fails to consider that Krauthammer may be allergic to Tic Tacs.

But I put Krauthammer in the same category as the ultra right wing Jennifer Rubin, with respect to whom I commented on a thread of Sandy's lauding her. (Lord, Sandy!)

Brian, you were wrong before Krauthammer's OpEd.

Trump's concept that "size" matters can be applied to the importance of the "size" of the vote for Hillary. So no excuses for Trump's statements cumulatively, not just Trump's "you'd be in jail" NYTimes column.
 

Forget emails. Surely this accusation by Trump cries out for investigation and prosecution. Right, Brett?

“Hillary Clinton meets in secret with international banks to plot the destruction of U.S. sovereignty in order to enrich these global financial powers, her special-interest friends and her donors”
 

Found typos and had an addendum, so I'll repost.

===

Krauthammer is voicing a general sentiment but is particularly notable because he actually notes that he finds "Comey’s recommendation not to pursue charges was both troubling and puzzling" and has a strong dislike the Clinton and the Obama Administration in general. I am not a big fan of the guy and his general views but he's worthwhile enough to read and judge as a voice on the right. He is cranky.

But, Brett finds one more Trump critic to be nefarious for some reason. The op-ed argues that Trump is violating long held norms (a generally conservative thing to say); the "new" aristocracy here apparently in place a long time. Trump supporters at times appeal to originalism and history; when it suits.

The op-ed did not say some class should "not be subject to laws everyone else is." Clinton was already investigated and someone with a long history of public service, a non-Democrat, followed long practice in not endorsing an indictment. Krauthammer notably disagrees, making him of particular interest here. He is concerned in part about the "preordained" nature of Trump's comments. He also is concerned about the selective nature of Trump's remarks, repeated evidence of "insinuated using the powers of the presidency against political enemies." He is generally concerned about Trump threatening 1A values, citing examples.

This doesn't sound like merely some support of "aristocracy" and also makes a broader case than merely not going after Clinton. This makes his argument stronger. Finally, there is a claim that Trump supporters have some neutral ideal here. I find that really fatuous from what I can tell. It looks more like a dislike of Clinton or "the left" etc. though like Trump they accuse the other side of this.
 

" The op-ed argues that Trump is violating long held norms (a generally conservative thing to say); "

For a long while there was a norm that Presidents and high officers not break the law; This led to a long period where Presidents and high officers didn't get prosecuted, because there was nothing they needed prosecution for.

Over the course of the 20th century that first norm died a gradual death. First it was supplanted by a norm that Presidents and high officers would go to great lengths to conceal their crimes. (I'm open to the possibility that this was the original norm, and the effort put into concealing the crimes just declined.) and so few people knew they merited prosecution.

This has now been replaced by a norm that Presidents and high officers should simply not be prosecuted for such crimes as they may commit, and that the public knowing they committed them and are not being prosecuted should be no big deal. It is this corrupt norm Krauthammer is defending, and I spit on it.
 

Brett, you're missing the point. The point is that the justice system is not supposed to be pre-ordained by politics. You've got a fantasy that Comey was bought off or something, we get it. But the normal process was followed: a law enforcement agency investigated the matter and made a conclusion. The problem is when politically motivated people don't like the conclusion made by the career law enforcement people and stomp their feet and want to order 'look again! look until you find it!' And then it's made worse when the political forces wanting a second look pre-ordain the outcome by leading crowds in cheers about the outcome.

As Krauthammer says, this is like the alleged problem with the IRS. The allegation was that the IRS went off the track career bureaucrats are supposed to be on, that political pressure made them 'look again, look until you find it' in regards to groups that the political powers just 'knew' were up to something. Imagine the contorted gyrations of hyperbolic anger you and Bart would be engaging in if during that Obama was leading cheers at rallies to the effect of 'take away their tax exemptions, take them away!'
 

Two unrelated questions to perhaps cleanse the palate from election issues (well, sort of!).

1. Can a President pardon him or herself?

2. What is the argument that laws punishing 'faithless electors' would be unconstitutional? I don't get that one. Don't we have lots of laws requiring people to go through with promises or directions? I seem to remember there are laws that require, during proxy votes in corporations, the directed proxy to be adhered to.

I appreciate any thoughts on these matters.
 

"a norm that Presidents and high officers not break the law"

There is a provision in the Constitution regarding impeachment and removal etc. because of the recognition that some breaches of the law will occur given that those in office are not angels. And, the temptations of power.

This matches your overall disdain of government. Now, you want to appeal to some fictional glory day when it wasn't really an issue. Only "over the course of the 20th century" apparently did Presidents and high officers break the law. But, no, people broke the law in the past, including corruption among certain high officers. An easy example would be during the Gilded Age, including the Grant Administration.

And, especially if we are going to go to the level of what Clinton allegedly did criminally, other examples before then existed. This matches your very claimed sentiment on the dangers of governmental power. But, your ideological blinders, shaded by a common nostalgia, is showing here yet again.

Krauthammer said in the op-ed he disagreed with Comey's action in respect to Clinton, so did not feel they "simply not be prosecuted." But, I disagree with him there -- as Mr. W. et. al. showed, not just "Democrats," the non-prosecution there was appropriate. Also, Krauthammer feels Trump has assuming guilt and provided various cases where he wrongly seems to be going after people simply for disagreeing with him. For those who actually care about the 1A, that might concern.

If CK is talking about some absolute rule, so that even the most horrible crimes would not be prosecuted after they leave office, as I said in a past thread, I disagree. But, he makes a multi-faceted case here & as you did before, you are overcompensating the excesses of it.
 

You're missing the point: Trump has NOT said he would railroad Clinton.

He's said he would ask for a special prosecutor, and predicted that would end with Clinton in jail.

Trump's opposition, perhaps understandably, but still wrongly, have this annoying habit: Any time Trump says anything, you attribute the worst possible meaning to it, even if no reasonable person would interpret it that way, and then pretend it's the only possible meaning.

That's what Krauthammer was doing, that's what you're doing, and it only makes you look like obnoxious fools to people who approach what Trump says in good faith, instead of with the predetermined goal if finding it outrageous.
 

Mr. W. went at this another way & I share his basic comments.

[1] The Constitution does not expressly answer this question.

http://www.slate.com/articles/news_and_politics/explainer/1998/12/can_president_clinton_pardon_himself.html

The literal answer might be "yes" with the proviso that there are two safeguards: no power over state prosecutions & Congress still can impeach/remove. I think there is an implicit rule about glaringly trying your own case here, a well assumed norm of rightful usage of power that was expressed from the days of the 17th Century.

[2] Ray v. Blair touched upon that issue, leaving open the possibility a fine or some such penalty is unconstitutional. But, the case was decided on narrow grounds; the dissent still thought the law (involving a party pledge) was unconstitutional.

The argument there is the correct understanding is that the Electoral College was set up so electors independently vote their conscience. This would be different from a corporate proxy. Even if a "Republican elector" is voted, that is just a sentiment. So, e.g., an "Anti-Federalist" delegate was not obligated to vote against the Constitution or a "Lincoln" leaning legislator to vote for Lincoln (pre-17A).

That might be right, but reading the 12th Amendment closely, don't think it is necessarily obligatory. And, simply put, quite early, electors weren't independent, if they ever really were. If that was the intent, it was not really followed. So, though I don't necessarily think those laws are good policy, I question if they are really unconstitutional.
 

Brett is a judge of what Trump says in good faith? That's not a norm by the lowest of standards.
 

Since so many people ARE interpreting it that way, Brett, including "reasonable" people, not just your usual strawman canards, your test is not met. They do this by looking at all the material in evidence, not some stray comment that you can latch on to. Finally, perhaps those who accuse people who aren't even voting Democrat as hacks who can't do anything that hurts Democrats should tone down the "obnoxious" point.
 

Jesus Christ, Brett, are you actually retarded? I don't mean to be so offensive, but when you write "Trump has NOT said he would railroad Clinton" and he's saying things like "because you'd be in jail" and leading chants of "“Lock her up is right” and “She has to go to jail” I have to wonder wtf you're smoking or whether you've been dropped on your head as a child. Lock her up and she *has* to go to jail are preordained outcomes.

Think. If you were a career prosecutor, and your boss, the guy who signed your paychecks and could fire you at anytime, asked you to look into a matter, but had just been leading chants about the outcome of that investigation, would you really feel like you could come back with an answer of 'no, boss, she doesn't warrant what you were leading those chants about."
 

joe

Appreciate the answer. On the first question, if you were a judge asked to review a self-pardon by a President, how would you rule?

On the second...Do you buy that? I really think that instead of trying to make the Electoral College, or any provision, match what the authors expected it to do, that courts should try to make it reasonable and make it 'work,' i.e., fit our values and not lead to absurd results. An anti-democratic electoral college would, imo, not work or fit into our values, and therefore laws designed to make it fit and work in that way would be approved.
 

Brett comes in for a job interview. The boss says 'I'm going to start an accepted process to evaluate and make a decision on your application.' But then the boss has a press conference and starts to say things like 'Brett would be turned down if it were up to me.' Then he leads a chant of 'Turn him down!' and 'He shouldn't work here!'

Brett would say 'the boss isn't trying to railroad me! He's initiated a fair process!'

Freaking in-cred-ible. It seems there's a Hillary Derangement Syndrome analogous to the Bush Derangement Syndrome that affected many on the left years ago.
 

Joe, in re-reading your comment I see you write that 'I question if they are really unconstitutional', and so perhaps my reply is incorrect. Again, appreciate your answer, informative and instructive as always.
 

[1] I would try to avoid it as a political question but if forced to decide would probably say basic fairness involves a single person like that not deciding one's own case & that since there is a reasoned debate on what the specific provision means, that principle provide the tie-breaker.

[2] It's a bit moot since early practice was in effect bound electors anyhow but sure I think we should not be bound by original understanding like that. And, the actual text seems to leave open bound elector laws. I do think that's the argument. But, don't think a fine or criminal punishment is necessary.
 

OK Brett.

You yourself believe Clinton is a felon, having done things that, in your oft-stated opinion, merit criminal punishment. Now you pretend that all you want is an investigation and, if appropriate, an indictment, etc.

But that's a load. As soon as an independent prosecutor decided, as Comey, did, that this is not a case that should be pursued you would be demanding a further investigation, etc. In other words, when you claim that all you want is for the normal process to take its course you are full of it. And so is Trump.

This is birther logic. Once you have your conclusion, anything that points the other way is suspect. Neither you nor Trump, nor all those morons chanting "lock her up" have the slightest interest in going through that process.

Stop pretending otherwise.
 

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I would hope that ethics would prevail in the hypothetical and that the special prosecutor would not be compelled by a certain result, chant or no. However, the more likely case is that the prosecutor (and cabinet members) will be chosen precisely for their loyalty and dependability, which is more concerning to me than one particular act of overreach.
 

Mista Wiskas, you seem not to grasp that what actually happened in the exact inverse situation: The President's subordinates were investigating his former Secretary of State after he'd publicly announced she was innocent. But you see no evil there.

Either the AG and head of the FBI are loyal flunkies who do as they knows the boss wants, or they are not. You can't have it both ways.

The fact is, we know Lynch's professional ethics are negligible. We know it because of that meeting with Bill on the tarmac. There's no world in which that visit was innocent.
 

At least Trump is holding on to the females in his base: the Ungropables (based on The Donald's standards). Brett should take a look at the counter-Trump T-Shirts that Bill Maher has assembled. Maher demonstrated his support for the 2nd A by shooting counter-Trump T-Shirts into the audience. These T-Shirts "kill."
 

Here's a draft of my latest Ode (with credits owed to Mother Goose):

THE FAT LADY ...

Sings her song for Trump/Pence,
Its campaign gone awry,
Built like a House of Cards
With lie, after lie, after lie.

Trump was in his Tower,
Counting out his money,
While Pence home in Iowa
Didn't think it funny.

"IT'S OVER!"
 

Krauthammer should know better. American government executives and those campaigning to become executives (presidents, governors, AGs) often speak of law and order in general and bringing specific outlaws to justice.

This is hardly caudillo behavior. It is American as apple pie.

What is new is that one of the major parties is running an apparent felon for president. Unless you are a partisan fan boy or willfully blind, anyone with a passing knowledge of the law knows the public record contains more than sufficient evidence to bring Hillary Clinton to trial for multiple felonies and misdemeanors. Far, far more than we had against Tricky Dick Nixon and Slick Bill Clinton.

What is also new is that the administration controlled by that major party refused to prosecute their candidate for president for crimes which they routinely prosecute others. (Please spare me the claim that Comey is a partisan Republican. In political cases during both the Bush and Obama administration, the man has always did what the Democrat establishment desired.)

THIS is caudillo behavior common in any number of banana republics.

Trump may be a danger to the rule of law other areas (such as the law of war), but his call to prosecute and jail Hillary Clinton for her apparent violations of law is a call to enforce the rule of law against the corrupt double standard currently existing in our federal government.
 

Mr. W:

I do not want to restart the discussion concerning Justice Goldberg from Sandy's closed comments, but I would recommend to look up the definition of dicta and how it is distinguished from on topic arguments in both majority and dissenting opinions.
 

I know what dicta is, it's that seems incapable of grasping what should be a basic point. I mentioned that any smart prosecutor is going to pay attention to parts of an opinion that suggest that had the case been different in X or Y way that the court may likely have ruled differently. If that likely different ruling would be averse to the prosecutor then they are going to try not to bring such a case to the court.

You acted like you couldn't imagine dicta in a dissent to be useful because as usual you were thinking in a simplistically literal and limited way: you have the law and majority opinion, what else could be important? But as the Goldberg case illustrates, a wise lawyer pays attention to the dissents as well. Anti death penalty lawyers saw Goldberg's dissent as an invitation to argue that the fest penalty is unconstitutional, especially for rape. They weren't advancing that argument, but Goldberg signaled that the Court was leaning that way. They smartly took the hint, and a few years later cashed in on it in Coker. It's a good thing for them they didn't have your limited insight and imagination!
 

" after he'd publicly announced she was innocent"

As usual you're wrong. He said that he didn't think her actions had hurt the nation. I don't think he should have said that, btw, but it's not saying she was innocent of they mala prohibitum offenses for which she was being investigated.

"There's no world in which that visit was innocent"

It's this kind of hogwash that you wallow in. Yes, it's certainly inconceivable that a former Democratic President might want to meet the first African American female AG in history for any reason other than something's by nefarious! Do you even read the nonsense you type?
 

His call to prosecute and jail Hillary Clinton is a political preordainment contrary to the rule of law. As I said above, if Obama had led a crowd in chants of 'those conservative groups are up to no good, so I'm directing the IRS to investigate their exempt status, block that status! Block that status!' your caterwauling would be ceaseless.
 

Mr. W:

Once again, you misrepresent what I posted.

Goldberg's dissent from a denial of cert was a substantive, on topic argument (not dicta) in a case where there was no majority opinion. After he left the Court, Goldberg's substantive dissent was, in part, the basis for a subsequent Court's holding that the death penalty for rape was cruel and unusual.
 

Mr. W: His call to prosecute and jail Hillary Clinton is a political preordainment contrary to the rule of law.

When exactly did Mr. Trump call for suspension of Mrs. Clinton's right to a jury trial and her other due process rights?

Once again, government executives have called to bring outlaws to justice throughout our history. They are the prosectors in an adversarial criminal justice system. They have no duty of neutrality like the judiciary.

Indeed, when our criminal justice system is so obviously corrupt and declines to prosecute political royalty for crimes for which the rest of us would be sent to prison, as an attorney who has dedicated the past 20 years to the rule of law, I demand to know whether the candidates running for president will remove that corruption and bring the guilty to justice.

My question to all the professors of law here who took the same oath I did, why are you not making the same demand???
 

Mr. W. sounds stressed of late regarding the Killer Bs. He started engaging in a sort of above the fray, polite sort of way, even trying to show BP the errors of his ways. Now, he's basically calling both idiots. Can't we all get along?

You know back when we all did, until sometime in the mid-20th Century when the former norm ended because of actions of "the left" in the FDR/Truman Administrations?

 

No, you misrepresent what you wrote, which was:

""he dicta of individual justices in dissent is not much of a clue to anything apart from the fact that the justice may dissent again in the future on similar grounds."

Of course you were demonstrably wrong.
 

"When exactly did Mr. Trump call for suspension of Mrs. Clinton's right to a jury trial and her other due process rights?"

When he said 'because you'd be in jail' and led chants to jail her when there hasn't been an investigation (actually there was one, where a lifelong GOP law enforcer found there was no prosecution to be pursued, but that of course makes it all the worse).
 

His call to prosecute and jail Hillary Clinton is a political preordainment contrary to the rule of law.

To say nothing of his insistence that the election "is rigged" before it even happens.
 

It's interesting to see the double standard. Bill Clinton meets with a LE official under whom an investigation of Hillary is going on. We don't know what's said, but the mere meeting convinces Brett that the investigation is hopelessly tainted by pressure or influence . But somehow the special prosecutor Trump would pick is not going to be tainted by influence or pressure by the fact that the prosecutor's boss led crowds in chants to jail the subject of the investigation! Incredible.
 

We don't know what's said, but the mere meeting convinces Brett that the investigation is hopelessly tainted by pressure or influence.

In fact, it's hard to see what "pressure" or "influence" Bill could have exercised. He isn't the President, he has no control over the AG or any other elected official. The person who does have that control (Obama) could meet privately with his AG at any point in time and instruct her how to proceed.
 

Seriously, if you think the AG should set up a secret meeting with the husband of somebody being investigated for serious crimes, you're hopeless. At most, if they bumped into each other by accident, she might exchange a few polite words. But arrange to meet in a plane parked out on a runway so that nobody would know what they said?

No honest AG would do anything of the sort. It stinks on ice. On some level you must know that.
 

I have redrafted my ode to correct Pence's State (not of mind) and with some other modification:


THE FAT LADY ...

Sings her song* for Trump/Pence,
Its campaign gone awry,
Built like a House of Cards
With lie, after lie, after lie.

Trump was in his Tower,
Counting out his money.
Back home in Indiana, Pence
Didn't think it was funny.

"THE PARTY’S OVER!"

 

Seriously, if you think the AG should set up a secret meeting with the husband of somebody being investigated for serious crimes, you're hopeless.

Actually, I'd expect that investigators regularly have private -- that is, secret -- meetings with those close to someone being investigated for a crime. Believe it or not, sometimes they even meet with the very subject of the investigation. Crazy, right?
 

Brett
I think it can give rise to the perception of potential influence, but it's also not crazy that coming across the first black woman AG in his travels a former Democratic President might want to meet her.

But if the meeting taints the investigation, how much more would the special prosecutor's boss having led chants to jail the subject of said prosecutor's invetgitation taint that? If you can't see that, talk about hopeless!
 

I mean your reasoning is: subjects husband meets with investigator's boss, you imagine he somehow influences her to influence the investigator.

But the boss of the investigator leading chants to jail the subject of the investigators investigation isn't going to influence the investigator? I mean really, that's goofy.
 

I should also note that the meeting, while private, was not "secret" in the usual sense of that word. A "secret" meeting would be one unknown to anyone but the participants. This meeting was known to pretty much everyone and was widely reported at the time. The proper characterization is "private" (and for all we know, others may have been present).

If Bill had had some nefarious purpose, I'm quite sure he could have arranged a "secret" meeting or phone call.
 

Brett,

He's outraged for exactly the reason Trump's supporters cheered. He wants to preserve the status of Executive branch figures as the new aristocracy, not subject to the laws everyone else is. Trump's base wants to end that cozy relationship,

Are you actually claiming that a President Trump would not try to extend his executive powers as much as possible and more? Really? You're claiming that?

This is a man who has given no indication that he is aware there are any limits at all on the President's power.
 

I'm saying he's outraged because Trump isn't proposing to shield his predecessor from the law, the way Ford did Nixon, the way Bush did Reagan, the way Bush did Clinton, the way Obama did Bush...

Will Trump endeavor to shield himself from the law? Yeah, probably, all modern Presidents do. I doubt he'll have as much success, having fewer allies in the bureaucracy and Congress than most Presidents. But if he just ends this filthy tradition of each administration holding the prior to be above the law, he'll have done the nation a service.
 

Following Bob Dylan, might there be in the future a Nobel prize for political poetry?
 

BD: "When exactly did Mr. Trump call for suspension of Mrs. Clinton's right to a jury trial and her other due process rights?"

Mr. W: When he said 'because you'd be in jail' and led chants to jail her when there hasn't been an investigation (actually there was one, where a lifelong GOP law enforcer found there was no prosecution to be pursued, but that of course makes it all the worse).


You need to make up your mind what excuse to use.

In any case, the reality is multiple investigations by the FBI, Congress, Judicial Watch, various leakers and a small handful of reporters who are not Democrat hacks like yourself have disclosed far more than sufficient evidence to indict Clinton, her staff and her attorneys on multiple felony and misdemeanor charges.

Trump is not calling for an investigation, he is demanding a special prosecutor use the evidence in the public record to try, convict and imprison her.

My major problem with Trump's demand is that he did not make it the day after Comey refused to do his job and every single day thereafter.
 

The most recent FBI document dump has disclosed evidence of yet another conspiracy to commit obstruction of justice attempting to convince the FBI to classify Clinton's emails to deny their production under court order to Judicial Watch.

http://www.weeklystandard.com/kristol-clear-podcast-deep-inside-the-globalist-conspiracy/article/2004906

Any one of you who votes for this felon is abetting these crimes.
 

"Comey refused to do his job and every single day thereafter."

Comey knows his job much better than you do, his having decades of experience and a demonstrated integrity and lacking your tendency to make overconfident blunders out of partisan blindness.
 

Also your link is to a podcast and discussion of children's writer Beatrice Potter? Bizarre, but I guess childish fantasy is what you've been spinning...
 

http://democrats.oversight.house.gov/sites/democrats.oversight.house.gov/files/documents/Herring%20to%20JEC%20%208.16.2016.pdf

The FBI explains it.

 

I do actually agree with people who want our highest-ranking officials to be prosecuted for breaking the law, just like everyone else.

On the other hand, anyone who thinks Trump is the man to achieve this is nuts. You are talking about a man who build his whole business career basically on fraud, who threatens libel and anti-trust actions against newspapers that print stories that displease him, and has threatened to use the power of his office to investigate judges who rule against him.

In short, even assuming Hillary Clinton has committed imprisonable offenses, any links between Trump's desire to prosecute her and the rule of law are purely coincidental.
 

The Donald got a dream tweet from his late lawyer Roy Cohn with advice on challenging the claims of unattractive women that he groped them without permission. "Donald, assemble a group of the really attractive women you groped w/o permission to prove your case."
 

The replies to Brett's "nefarious" meeting comment is appreciated but he has shown such blinders on Trump vis-a-vis someone else that it is of limited value.

But, he shows the common practice of Trump and his supporters complaining about the other side doing things he does. Thus even people not voting for Hillary Clinton are alleged to be in the bag for people with a "D" next to their names while if any Democrat was being discussed, time after time, Brett would sneer at the ideological blindness of comments like his.

"But if he just ends this filthy tradition of each administration holding the prior to be above the law, he'll have done the nation a service."

Essay's comment is appreciated. To remind, the general trend of the comments here has been that if the case was serious enough to warrant it that people in past administrations should not be "above the law" in this fashion. Some cases are very tricky, in the real world, realistically. I think this was the case with the torture etc. investigations of members of the Bush Administration. It to me is mere fantasy to pretend we should just investigate and prosecute may the sky fall, even if the likelihood of prosecution is low etc. That is not how prosecutions ever work, now or in the past. Some zero tolerance regime is fantastical. I think more should have been done there, but emails are not torture anyways.

In the case in question, however, putting aside the repeated evidence of Trump's bias, she was already investigated and it was shown that applying established law and practices would warrant her not be prosecuted. The "rule of law" was followed. The people also have general power not to vote her into office, though the Republican Party is not helping with their candidate. People with ideological blinders and poor knowledge of the law here disagree. There was some dissent outside too, including Charles Krauthammer himself. But, he still appears to think it wasn't just some sham investigation.

Trump going after Clinton like this HURTS the principle being promoted since it is so obviously tainted. This will lead people to say "see, can't do that." Again, part of a trend. Concern for power of government. Put in some unqualified reckless sort who promises if you just give him power, don't worry too much about the rules, he will do great things. This is in fact why some over at Volokh Conspiracy are worried, even if he is going to pick nice judges.
 

In various of Sandy's threads I have referred to the Evangelicals who first supported Cruz who then switched to The Donald as Revengelicals. Following today's political talk shows, perhaps a better term might be Avengelicals. Any thoughts (in moderation, of course)?
 

"When exactly did Mr. Trump call for suspension of Mrs. Clinton's right to a jury trial and her other due process rights?"


Trump is not calling for an investigation, he is demanding a special prosecutor use the evidence in the public record to try, convict and imprison her.

A show trials, which is what Trump is calling for, does not meet any definition of due process.

Let's see. Under your formulation,

1. The prosecutor must find enough evidence to prosecute.
2. The jury must convict.
3. Her punishment must include imprisonment.

And you call that due process, despite the fact that the investigation(s) already conducted do not justify prosecution. Apparently, any sequence of events that differs from your predetermined steps is dishonest.

Due process. Right.

 

The Donald (aka the" Sniffer") is calling for drug tests for the next debate. But that would leave out Libertarian Gary Johnson, who's not in the next debate. Any debate drug tests should include Chris Wallace to make sure the 3rd debate is not rigged, and you can Roger that.
 

Shag's comment on drug tests reminds me of when the Supreme Court struck down a rule for mandatory drug tests of those running for office:

https://www.law.cornell.edu/supct/html/96-126.ZS.html

The oral argument suggests that sometimes you should find someone to argue your case. Sometimes, that works. Other times, you have the patchy work shown here (see Oyez.com). Also, I heard Gary Johnson note on C-SPAN that he is only for the legalization of marijuana, not harder drugs. Just to toss that in there.
 

byomtov: A show trials, which is what Trump is calling for, does not meet any definition of due process.

Let's see. Under your formulation,
1. The prosecutor must find enough evidence to prosecute.
2. The jury must convict.
3. Her punishment must include imprisonment.


Under my formulation, otherwise known as the Bill of Rights, the prosecutor must obtain an indictment from a grand jury of random citizens who agree that there is prima facie evidence of every proposed charge. The Obama "Justice" Department tellingly never called a grand jury, never presented the evidence and never asked for an indictment.

The prosecutor then has to offer evidence beyond a reasonable doubt to a jury of random citizens, culled of biased people through strikes for cause and preemptory strikes.

Federal sentencing is controlled by a set of statutory guidelines when the judge can consider aggravating and mitigating factors. The prosecutor definitely has an advantage here because Clinton's ongoing lying and obstructions of justice are aggravating factors. If the jury fonds her guilty of multiple felonies and misdemeanors, I would be amazed if the judge did not sentence Clinton to prison.

By calling for Clinton to be brought to justice and predicting that she would be sentenced to prison. Tump is not denying Clinton any of her due process rights. Trump has no control over the juries, the judge or the sentencing guidelines.
 

No, Bart.

That's not what you said.

What you said is,

he is demanding a special prosecutor use the evidence in the public record to try, convict and imprison her.

That's a call for her to be imprisoned after a show trial. Further, all the rhetoric from you and your pals says that anything less than a conviction would be illegitimate. I mean, you already rejected the conclusions of one investigation. How many will you demand until you get th result you want? Is the Benghazi thing over with. Maybe Trey Gowdy is free.

That's calling for a show trial.
 

bymotov:

A prosecutor is necessary to present evidence and argument to obtain an indictment, conviction and a sentence of imprisonment.

What we lack now is a non-corrupt prosecutor willing to enforce the law against Democrat political royalty.

Trump and I are demanding such a prosecutor.

No one is demanding nor could they obtain a show trial.
 

No, what Trump was clearly calling for was an outcome, that she'd be jailed. It's literally what he called for.
 

"a non-corrupt prosecutor"

A scurrilous charge. Comey has a sterling record of integrity. You have no evidence of any corruption on his part other than that he didn't come to your predetermined conclusion, which speaks to your lack of integrity, not his.
 

SPAM I AM! with this:

"What we lack now is a non-corrupt prosecutor willing to enforce the law against Democrat political royalty.

Trump and I are demanding such a prosecutor."

adds to his deep down not so secret desire to see The Donald elected President. Notice SPAM I AM!s defamatory innuendo regarding FBI Director Comey via his reference to "a non-corrupt prosecutor." Federal prosecutors please note.
 

Mr. W: No, what Trump was clearly calling for was an outcome

Executives call for an outcome as soon as they ask a grand jury for an indictment based on the evidence. The outside is determined by a grand jury, a jury and a judge. Remember, the executive is an advocate in an adversarial judicial system.

BD: "a non-corrupt prosecutor"

Mr. W: A scurrilous charge. Comey has a sterling record of integrity.


1) Comey is the investigator, not the prosecutor.

2) Comey trashed his reputation for integrity by deferring to or conspiring with a corrupt prosecutor seeking to provide her president's preferred candidate for president a dispensation from following the law.

You and not Trump are the one arguing against the rule of law.
 

He's not leading chants of 'prosecute her!' He's leading chants of 'jail her!' Band he's not saying she'd just be prosecuted if he were elected, he plainly and expressly said 'you'd be in jail' to her if he were. You're directly misreprensenting what he's literally said.
 

"Comey trashed his reputation for integrity by deferring to or conspiring with a corrupt prosecutor seeking to provide her president's preferred candidate for president a dispensation from following the law."

Comey gave his conclusion and recommendation and the reasons for it. You reject it because he came to a conclusion contrary to yours, and in the same way that you, with childish obtuseness, can't understand his reasons you also now come to the reckless conclusion that he and Lynch are corrupt. After all, as you've 'reasoned' all along, she's so clearly guilty any other outcome is only fathomable as the result of corruption. Again, that speaks to your bias and lack of integrity, not Comeys.

Comey gave his reason plainly: it's contrary to charging practice to bring a case like Clinton's. You and the conservative press have not been able to offer any evidence, not even one case, contrary to Comeys assertion. While unable to refute Comey at all you then go one to make yet another reckless, unsupportable slanderous charge. You're a shameful person.
 

If Obama led chants of 'don't recommend prosecution' during the investigation I guess Bart would be fine with that. After all, he'd just be predicting that there'd be insufficient grounds to recommend a prosecution.

This is where Bart's Hillary Derangement Syndrome has led him.
 

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Mr. W:

I apply the evidence to the law as written.

Comey incomprehensibly limited his review to one provision of the law and then changed the elements of that crime in order to avoid making the criminal referral demanded by the evidence.

I have seen law enforcement and prosecutors minimize the evidence in order to avoid prosecuting politically difficult cases. However, I have never before seen law enforcement or a prosecutor invent fictional elements to a crime to avoid prosecution.

You are a Democrat flack playing citation to authority games and faithfully repeating Comey's facially ridiculous excuse.
 



You haven't seen the evidence. For instance, you've not seen the supposedly classified emails at issue. It's reckless for you to offer not just a conclusion about this case, but to add to your scurrilousness you compound things by actually accusing the investigator who has seen that evidence of corruption because he didn't come to your recklessly reached conclusion.

You also recklessly aren't familiar with relevant case law surrounding the statute at issue. It's this case law that informs the FBI charging practice Comey refers to, and it's plain you're unfamiliar with it, but your ignorance doesn't stop you from making your reckless conclusions (and reckless tangential ones).

As if this isn't enough, a prudent man could be ignorant of both the facts of the case and relevant case law, but would still have pause about not only questioning Comey's conclusion but making aspersions about his integrity considering that YOU CANNOT PROVIDE ONE CASE contrary to the charging practice Comey points too.

You sit there like a gibbering gibbon clapping his hands and pointing to the statute and jury instructions, acting as if you've never heard of case law and charging practices (I guess in your prosecutor days [pre 2003] your bosses regularly brought speeding cases for 1 mph over the limit or for sodomy offenses, both were literally offenses after all, but most prosecutors make a practice of not bringing charges they find to be troubling because they're petty, easily seen as such, and/or likely constitutionally shakey). But maybe you're not a prosecutor anymore because of that simplistic literalness and inability to realize the law is more than such foolishly restricted outlooks.

 

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In Gorin v US the Court recognized that (a prior version) of the Espionage Act was close to vague or overbroad, but ruled that the law's ntent scienter delimited the potentially vague/overbroad language and thus saved the law from constitutional infirmity. The later version of the law put in a lower mens rea , gross negligence. Law profs, prosecutors and defense attorneys with any sense could complete the hypothetical syllogism: if the previous law was saved by its scienter, and this version changed that, then this version might not be saved if challenged. So it makes total sense that prosecutors would avoid that by not bringing cases under the provision of the law with the weaker mens rea. AND THAT'S EXACTLY WHAT THE EVIDENCE SHOWS. No cases can be pointed to contrary to it. None. Zilch.
 

What MW said.

You can't simultaneously insist on an honest process and claim that any outcome different from your predetermined conclusion is proof the process was dishonest.

Yet that is precisely what Bart is doing.

To claim otherwise is nonsensical.

Bart is behaving like his hero, Trump, who has procalimed the Central Park Five guilty, based on his own judgment, facts notwithstanding.
 

Mr. W:

Comey never denied the hundreds of emails with classified information, which is why Justice had to invent a fictional intent element.

No court has invented an intent element for this offense and none has held the gross negligence element unconstitutional.

I do not need to cite to a court ruling holding the gross negligence element constitutional in order to rebut Justice. The staute establishes the element and Justice's own jury instructions use it.

I can slap you down with the evidence and the law all the live long day.
 

Mr. W:

If you are going to engage in the citation of authority logical fallacy, at least read what Comey said in his sworn testimony. FBI does not deny that the 1,000+ Clinton emails State redacted before release contain classified information and Comey admitted that that a lesser number of emails contain classified defense information. His entire excuse for not making a criminal referral to justice was that Clinton's res rea did not rise to intent to violate the law.

BTW, intent to violate the law is legal nonsense for two reasons: (1) the statute does not call for an intent element and (2) the intent element would be to perform the proscribed act, not to violate that particular law.

No court has held that the gross negligence standard unconstitutional nor have any substituted an intent standard. Once again, dicte is not controlling law and any dicta questioning this law is not precedent. Any prosecutor and trial court, therefore, is required to follow the law as written.

Justice DOES NOT have a practice of trying this crime under an intent element. Their own damned standard jury instructions use the proper statutory element of gross negligence.

This criminal trial attorney does indeed apply the evidence as it exists to the law and jury instructions as they are written. My judges would slap me down in a Colorado minute and my clients would have a virtually sure fire professional negligence suit if I did not.

The real world of prosecutors and defense attorneys does not use the ridiculous "Clinton defense." Only Democrat flacks and enablers do.


 

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