Balkinization: A Barr-Trump Commission of Inquiry?

Comments:

"even if Emoluments Clause violations might be so described, I would exclude them from prosecution as well."

I don't have a problem with declining to prosecute these, but recouping the money should definitely be part of the response.

As for your idea of a commission, I don't see how it would work in practice. Aside from Never-Trumpers, the party has gone all in for Trump. The Mueller investigation, the Kavanaugh hearings, and impeachment all reinforce the partisan nature of the current Rs. We can't expect impartial behavior from them even in the most egregious situations.

Personally, I think we've gotten to this point because for far too long we've allowed criminal behavior by office holders to go unpunished. From Nixon to Iran-Contra to torture (!) to Trump, it's all been a depressing collapse of basic standards. Prosecution is an essential step to restore a functioning system.

# posted by

Mark Field : 11:51 AM

What actions of the Department of Justice during the Trump administration?

What criminal charges?

What political offenses?

The primary activity of the Trump Justice Department which should concern a hypothetical Biden administration is the criminal investigation by multiple US Attorneys of the predecessor Obama Justice Department, FBI and intelligence agency spy operation against the Trump Campaign, continued by a special prosecution team dominated by Democrats for years into Trump's administration.

Is this to what you are referring?

# posted by

Bart DePalma : 11:57 AM

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# posted by

Joe : 12:46 PM

I was open to a sort of Truth and Reconciliation Commission type of mechanism to deal with the torture & related activities of the Bush Administration. People were upset that the Obama Administration did not prosecute for torture. Magical Obama would jump past popular and political opposition and bring Cheney to the dock! Reality community indeed.

I'm sympathetic to Mark's position as a whole. Nixon getting off without even going thru some sort of procedure that requires full disclosure and so forth is cited as perhaps the start of the current mess we are in. But, even then, numerous members of the Nixon Administration was prosecuted. The Bush pardons (with an assist from Trump consigliere Barr) of the Iran -Contra bunch later on is perhaps a big turning point.

I would also like details:

My current thinking, which I suspect is going to become the conventional wisdom (not because of my efforts) is that it would be a bad idea for a Biden administration to pursue criminal charges against high-level officials of the Trump administration for actions that, while perhaps fitting within existing criminal statutes, are basically political offenses.

What does this entail? This isn't a Trumpie comment that nothing is there. It is a lack of clarity of what exactly are "political" offenses in this context.

# posted by

Joe : 12:47 PM

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# posted by

Joe : 12:56 PM

Aren't you getting a bit ahead of yourself? A "truth and reconciliation" commission is something the winner of a civil war does to the loser, when they want to get some digs in, but don't want to go so far as to risk restarting the war by imposing penalties on the losers.

You have to win a civil war first.

# posted by

Brett : 1:40 PM

"reconciliation (to what might turn out to have been widespread violations of rule-of-law norms if not of laws themselves) isn't really what we should be after"

The reconciliation in the South Africa case was intended to provide a means for society itself to find a means to move forward, those involved a large segment of the society and often members of the oppressed group as well.

As with those who promote reconciliation among the "abolish prisons" movement, in practice, that can be a complex method toward long term well being. It is not intended to be a means to accept the wrongdoing. If we are not going to prosecute, it is unclear again what exactly not focusing on that would do.

Would not Never Trump types be inclined to agree to be involved only if the commission provides an incentive for involvement -- if you are truthful, open & perhaps if you agree to pay financial restitution (emoluments) if warranted -- long term, you might be accepted to have reformed enough to be a credible member of the public sector.

# posted by

Joe : 1:54 PM

"Would not Never Trump types be inclined to agree to be involved only if the commission provides an incentive for involvement -- if you are truthful, open & perhaps if you agree to pay financial restitution (emoluments) if warranted -- long term, you might be accepted to have reformed enough to be a credible member of the public sector."

Again, this is the sort of thing the winner of a civil war might impose on the loser. It's not the sort of thing the winner of an election imposes on the loser. Unless maybe they WANT to start a civil war.

I can think of no better way of getting the right to switch from contesting elections to using sniper rifles, than pursuing this tactic.

# posted by

Brett : 3:18 PM

The right is already killing people and has been for some time. 38 in 2019 alone and the vast majority of all such deaths since 9/11. And they don't "contest" elections, they steal them.

# posted by

Mark Field : 3:41 PM

Lol. Remember when Bircher Brett said it was not only fine but a good thing for Trump to use his law enforcement authority to selectively target his political opponents? This is the least self aware person in the universe, and every accusation is a confession for the Bircher.

# posted by

Mista Whiskas : 3:56 PM

So a federal judge has concluded that Bolton acted improperly but declined to enjoin the book. Trump had a tweet in which he used the line 'Bolton wants to bomb everyone' or something and predictably conservatives all over the Internet are lemming like using the same (remember when conservatives proudly called themselves ditto heads?). Our Birchers regularly repeat the conservative line and terminology of the week, but it will be especially fun to see Bircher Bart on this as he 1. Pathologically uses the line and terminology of the week with parrot like consistency but 2. Was essentially the second cheerleader from the bottom of the pyramid hoisting Bolton in the air displaying the 'bomb, bomb, bomb!' banner.

Get popcorn...

# posted by

Mista Whiskas : 4:19 PM

"Lol. Remember when Bircher Brett said it was not only fine but a good thing for Trump to use his law enforcement authority to selectively target his political opponents?"

Have you not noticed that the proposed "commission" isn't a criminal court of law with the full procedural rights appropriate to that? It's just a star chamber with the power to ruin you if they don't like your answers.

And the people proposed to be pulled before it? Republicans who aren't NeverTrumpers. IOW, practically the entire GOP.

This isn't a proposal to enforce normal criminal law. It's not even remotely that. It's just a proposal that the winning party in one election ruin the lives of anybody in the opposing party who doesn't publicly confess their guilt.

# posted by

Brett : 4:57 PM

Yes, the November elections are important in part to defeat the people who govern with the mentality that a review after an administration deemed corrupt even by chunks of its own party that focuses on truthful testimony, financial restitution when legally warranted, is diverse in nature etc. warrants "sniper fire."

Over our history, various governments (local and national) had such reviews to deal with governmental overreaching. One result of having a Biden as compared to a Warren is that the result will be less punitive and broad in scope but still honoring the overall republican (small "r") principles of sound government. This would involve diverse political results but within a certain legitimate realm of power.

We are at the point where this is somehow deemed by some as radical, including restraint on an Administration that asks multiple foreign powers for electoral favors and obstructs justice to such a degree the likes of the former head of the FBI appointed by George W. Bush cannot say its head did not break the law.

# posted by

Joe : 5:07 PM

"financial restitution when legally warranted,"

The "financial restitution" was predicated on a novel interpretation of the emoluments clause, basically just would amount to a demand for money.

And, again, I missed the part where this commission involved all the procedural safeguards of criminal law.

# posted by

Brett : 5:19 PM

This comment has been removed by the author.

# posted by

Joe : 5:20 PM

"This isn't a proposal to enforce normal criminal law. It's not even remotely that. It's just a proposal that the winning party in one election ruin the lives of anybody in the opposing party who doesn't publicly confess their guilt."

Enforcing normal criminal law =/= selective investigation and prosecution of political opponents. And nothing quite ruins a person's life like criminal prosecutions.

The least self-aware person in the universe.

# posted by

Mista Whiskas : 5:27 PM

Over our history, there were a range of commissions that investigated government wrongdoing. A person concerned with governmental power might support this.

The exact nature of this commission is unknown since it was just proposed in a broad brush sort of way. But, if it is run by the government, it has to follow basic due process rules. The proposal is for a bipartisan commission with a Never Trump co-chair or the like. If the "entire GOP" was going to be called in front of it, that would take a long time. OTOH, during the impeachment process a variety of Trump appointees and personnel testified quite willingly.

The "financial restitution" was predicated on a novel interpretation of the emoluments clause, basically just would amount to a demand for money.

I cited that as an open-ended thing that would be applied when appropriate. I won't reexamine how a traditional application of emoluments would show that the provisions are violated. Since it is a government seizure of property, it would have to be done following due process rules as applicable.

# posted by

Joe : 5:30 PM

"Some of the conservatives on the Court have looked at the possibility of having mobs burn their homes to the ground"

"I can think of no better way of getting the right to switch from contesting elections to using sniper rifles,"

Every accusation is a confession.

# posted by

Mista Whiskas : 5:32 PM

"all the procedural safeguards of criminal law"

"It's just a proposal that the winning party in one election ruin the lives of anybody in the opposing party who doesn't publicly confess their guilt."

Bircher Brett was of course ok with the winning party in an election asking a foreign government to investigate (heck, probably just *announce* investigation) those in the opposing party*. Big believer in all the procedural safeguards of criminal law before ruining lives that guy.

*And mind you only doing so when those in the opposing party started to beat them in the polls!

# posted by

Mista Whiskas : 6:03 PM

"My current thinking, which I suspect is going to become the conventional wisdom (not because of my efforts) is that it would be a bad idea for a Biden administration to pursue criminal charges against high-level officials of the Trump administration for actions that, while perhaps fitting within existing criminal statutes, are basically political offenses."

Hasn't this approach failed the country spectacularly? What stops the next would-be Trump from engaing in rampant "political crimes" if he knows that prosecution is off the tab le?

# posted by

Michael Byrnes : 7:31 AM

"Hasn't this approach failed the country spectacularly?"

In the sense that the Trump administration, by failing to pursue criminal offenses by the Obama administration, just emboldened Democrats, sure. It obviously failed. But I suspect that's not what you meant? No, you're indulging in the pretense that this is entirely a problem with one party committing crimes, and it isn't yours, so you've got nothing at all to worry about.

The problem is that, by bringing up "emoluments", the OP demonstrates that we're not talking about real crimes, but instead manufactured ones. The emolument clause case is utter and complete bullshit. It depends on redefining emoluments to mean something it has never been understood to mean in the entire history of the country: Ordinary commercial profits while holding office!

Why, under the reasoning here, shouldn't Trump, in the event he wins reelection, set up his own truth and reconciliation commission, and haul Democrats before it? Just because you're pretending Democrats didn't do anything wrong?

Screw reconcilliation commissions. If you think you can prove real crimes, pursue them through genuine criminal trials. If you're afraid to do that, stuff it.

# posted by

Brett : 9:02 AM

"Why, under the reasoning here, shouldn't Trump, in the event he wins reelection, set up his own truth and reconciliation commission"

In Ukraine? Because he tried that, in secret and only when he perceived the people in question to be a current political threat. And Bircher Brett thought that was just dandy.

Partisan incoherent.

# posted by

Mista Whiskas : 9:30 AM

Commercial profits from foreign governments the POTUS is dealing with (supposedly for the good of everyone). Certainly no problems there!

# posted by

Mista Whiskas : 9:33 AM

A small correction for Brett: Trump already has set up a sort of "truthiness and historical revision" commission. In what used to be the DOJ.

# posted by

C2H5OH : 10:01 AM

Two Marks:

even if Emoluments Clause violations might be so described, I would exclude them from prosecution as well."

I don't have a problem with declining to prosecute these, but recouping the money should definitely be part of the response.

Prosecuting or declining to prosecute these imaginary violations under what statute?

# posted by

Bart DePalma : 10:05 AM

As I suggested above, I understand a T&R Commission to require cooperation and participation by both sides. Under that assumption, Brett's complaints about that process make no sense.

# posted by

Mark Field : 10:06 AM

Brett: This isn't a proposal to enforce normal criminal law. It's not even remotely that. It's just a proposal that the winning party in one election ruin the lives of anybody in the opposing party who doesn't publicly confess their guilt.

During their Cultural Revolution, the ChiComs used to call this sort of thing "struggle sessions."

# posted by

Bart DePalma : 10:16 AM

Michael Byrnes: Hasn't this approach failed the country spectacularly? What stops the next would-be Trump from engaing in rampant "political crimes" if he knows that prosecution is off the tab le?

Prosecution for what crimes? Thought crimes?

# posted by

Bart DePalma : 10:18 AM

No, you're indulging in the pretense that this is entirely a problem with one party committing crimes, and it isn't yours, so you've got nothing at all to worry about.

I won't speak for the person, but regulation of government corruption & adequately addressing it is something that over the years was something that resulted in addressing the wrongs of all parties. This included top members of the NY government.

The problem is that, by bringing up "emoluments", the OP demonstrates that we're not talking about real crimes, but instead manufactured ones.

This has been refuted elsewhere and at any rate Trump has the level of -- both domestically and internationally [there being two emolument provisions] -- involvement and violation of special reach given the nature of his business and acts.

Likewise, over time, our regulations of financial institutions have become more strict. But, one side now is of the position that even investigation by Congress, which has express power in the Constitution to regulate the question, is beyond the pale.

Anyway, as follow-up comments by me personally clarified, "financial" to me is a general thing & would not just necessarily apply to emoluments. Financial corruption is a timeless aspect of government wrongdoing & more should be done to address it, no matter what party is involved.

Why, under the reasoning here, shouldn't Trump, in the event he wins reelection, set up his own truth and reconciliation commission, and haul Democrats before it?

There already were and are efforts to target Democrats. As Mr. W. noted, Brett found nothing really wrong with that. But, a system where there is a bipartisan mechanism to review administrations as a whole would be sensible though we already technically have a justice department. Plus, admittedly this might be hard for Trump true believer, but there is also an understanding of fair and careful process here. Not this "get them."

Note, unlike Trump, the BASIC opening gambit was against "lock 'em up."

Screw reconciliation commissions. If you think you can prove real crimes, pursue them through genuine criminal trials. If you're afraid to do that, stuff it.

Civil process against wrongdoing is a thing.

Some also -- see, e.g., the "abolish prisons" movement -- are wary of heavy-handed criminal proceedings with the threat and loss of liberty involved.

But, perhaps, those not so concerned about government power will go another way.

# posted by

Joe : 12:35 PM

Trump particularly, now with the power of his office behind him, btw has used multiple non-criminal means to target enemies. By word and deed.

So, it is not like we can just handwave non-criminal means. But, that's just a kernel of truth mixed in with a lot of error.

==

Anyway, again, it might be good to flesh out what these "technically" criminal acts that are really "political" acts are. It's a confusion. It feels like those who try to handwave saying "under God" (make it "under Jesus" to make it easier) as a "political statement" so not a concern under First Amendment.

Something can be both.

# posted by

Joe : 12:43 PM

Oh for chrissake then why don't we just never have any accountability at all, right? In fact, why even bother to oppose anything? Let's just sign all of our rights over to the Trump family in perpetuity.

Pathetic.

# posted by

The Fool : 2:49 PM

After thinking this over for a while, I wonder just where the push for such a commission will come from.

I suspect that, when Trump goes down in flames, the size of the "never Trump" faction of the GOP will suddenly grow dramatically, leaving only a die-hard core (exemplified by one commenter here) who will continue to insist that no, there was no crime, no obstruction of justice, nothing at all skeevy that went on ...

The "new never Trump" faction, including much of the GOP congressional contingent will be desperate to put all the past behind them and totally uninterested in examining what went on. The rump Trump faction will, of course, also be uninterested in looking for things that might demonstrate how wrong they are.

Why would the left be interested in extending an olive branch (non-judicial proceedings just for the purposes of allowing people to ask for -- and be granted -- forgiveness) to people who will not be interested in participating? Not that the "left" controls the Democratic party. Why would the Shumer-Pelosi leadership crew want to remove something that they probably hope to run ads for for another ten years?

# posted by

C2H5OH : 5:04 PM

The OP ends with concern for too much of a focus on reconciliation, wary of the South African model. He speaks more of a commission, full stop, a fact body that will help to address what happened & help deter it from happening again. For instance, Facts --> policy proposals. Or, Facts --> what to be on guard for. Facts--> who not to support.

So, "non-judicial proceedings just for the purposes of allowing people to ask for -- and be granted -- forgiveness" seems a misreading of the proposal. Even for those who support some sort of "forgiveness," it would be a quid pro quo to advance the wider interests of the commission.

There is a voice on the left that wants prosecutions to be on the table. So, doing nothing would be problematic. But, a commission will provide some fodder for partisan red meat too, so provides some usefulness there too. Plus, it provides something to offer to those who are demanding something.

The limited reach will also lead some non-Democrats to find value to it because (1) they support the overall idea of let's say safeguard the Department of Justice on principle (2) Trump/Barr overreaching is so far that they need to disassociate themselves & some are simply on principle upset about it (3) A means to look reasonable, which can be useful when obtaining political jobs and so forth. etc.

===

Early on, btw, there was a reference of "getting ahead of yourself." The OP early on specifically notes the whole thing is based on the "obviously contestable assumption" of Biden winning. Note that even when the Bush Administration retained power, midway there was so much pressure against their overreaching and concerns about abuse, that investigations were made & re-examining of basic executive policy led to changes.

# posted by

Joe : 6:09 PM

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# posted by

Joe : 6:14 PM

I don't think this is such a good idea. It will certainly be criticized as McCarthyite from one side, and wimping out from the other. I can imagine circumstances under which either or both criticisms could be valid.

Neither the Kerner Commission nor, so far as I can tell, the Lawrence inquiry, seem to have been aimed at officials of one party. This commission would be so aimed, anti-Trump Republicans or not. That looks like a good way to exacerbate the bitterness we already have in the country. I'd call it a fatal flaw in the plan.

Besides, I'm not sure what the purpose would be. Public shaming of wrongdoers? That's the business of journalists, not government commissions. Legislation to tighten ethics rules, improve transparency, or make some legal, but dubious, behavior illegal? Shouldn't investigations toward those ends be by Congressional committee?

It seems to me we have ways to establish different levels of accountability, including criminal charges where appropriate, and that creating an ad hoc commission to augment them will do more harm than good.

# posted by

byomtov : 6:25 PM

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# posted by

المتوكل على الله : 7:36 PM

byomtov, I think the idea is that there is a very serious possibility that the Trump administration re the DOJ has violated the kind of professional norms that are required for the Executive branch to be anything other than a potential horror show and therefore our Republic a banana one. These may or may not involve enumerated criminal offenses or justiciable constitutional violations, however they direly need to be addressed. A commission could be important for this role in naming, shaming, and recommending to re-assert and help further maintain those norms.

# posted by

Mista Whiskas : 8:07 PM

And by 'violated' I mean the sense of 'profaned' or 'desecrated.' The Trump administration acts like a Jacksonian one favoring patronage over professionalism*. This is especially troubling in the DOJ for the rule of law and democracy.

*Note our Birchers, cynical nihilists and partisan extremists who cannot conceive of professional standards and ethics, think that's dandy.

# posted by

Mista Whiskas : 8:14 PM

The Stephen Lawrence inquiry in Great Britain was cited in the OP as arising from a murder and belief that the police reaction was inappropriate. This led to an institutional review of the police. Were not the police ultimately the responsibility of the power in government at the time?

There is a certain conflicting concern in the comment -- first there is a concern it will be deemed partisan but then suggesting it should be more a matter of congressional review. But, why not both? See, e.g., torture investigations.

One argument here is that simply put Congress would not be a realistic way to have any sense of a bipartisan approach given the nature of the parties now. Outside there is more of a chance since there are non-Democrats who would be willing to take part there. Anyway, again, clashing concerns -- there really needs to be strong response, some strong reply that what happened was wrong. This will cause some bitterness to those who support what occurred.

I'm open to discussion on what the right response should be.

# posted by

Joe : 8:50 PM

Mr. W: I think the idea is that there is a very serious possibility that the Trump administration re the DOJ has violated the kind of professional norms that are required for the Executive branch to be anything other than a potential horror show and therefore our Republic a banana one. These may or may not involve enumerated criminal offenses or justiciable constitutional violations, however they direly need to be addressed.

Such as?

# posted by

Bart DePalma : 10:11 PM

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# posted by

Peranti Guru : 2:30 AM

"Besides, I'm not sure what the purpose would be. Public shaming of wrongdoers?"

Pretty much, where "wrongdoer" means nothing more than "political opposition". It's pretended otherwise by the simple expedient of assuming that everybody who does oppose the left is guilty.

The left have been losing their capacity to admit that it's actually legitimate for anybody else to win elections or govern for years. What's proposed here is just the next step: Demanding that Republicans publicly agree with that sentiment, or be destroyed.

Why is it suggested to avoid prosecutions? Because criminal trials still carry annoying safeguards. But it's still proposed that the commission be able to levy some sort of punishment. Mark Field suggests somehow "recouping" money for supposed emoluments clause violations he wouldn't bother proving in a court of law. IOW, fines without convictions! And some kind of social destruction has been proposed, too; How would this be carried out, in a country where about half the population are on the losing side of the election supposed to precede this?

OK, question for the prof: How do you feel about Republicans organizing the same sort of commission themselves, next year, should THEY win the election? Is this sauce for the gander, too?

# posted by

Brett : 6:08 AM

Brett: OK, question for the prof: How do you feel about Republicans organizing the same sort of commission themselves, next year, should THEY win the election? Is this sauce for the gander, too?

The GOP is doing so and I suspect that is the unspoken issue here.

Durham and two other US Attorneys are finishing their criminal investigation of the Obama administration spy operation against the Trump campaign, continued into his administration by the bureaucracy and then the special prosecutor team. Barr told the press over the weekend to expect "developments" (indictments?) in that investigation later this summer.

Linsey Graham's Senate Justice Committee is ramping up hearings on the spy operation and perhaps the Biden/Bursima pay to play operation.

I am not naive enough to believe that the long delay of both of these into Trump's reelection year is an accident.

# posted by

Bart DePalma : 8:13 AM

"The GOP is doing so "

Ah, at last he's stumbled into something. But of course our Birchers can't get why doing so in secret via the DOJ is problematic, given they don't can't even conceive of professional norms and their critical importance there.

# posted by

Mista Whiskas : 8:24 AM

"Mark Field suggests somehow "recouping" money for supposed emoluments clause violations he wouldn't bother proving in a court of law."

I didn't say that, though I can see how the context might have led you to that conclusion. But no -- I'm skeptical of whole idea and prefer standard court actions for both Trump's crimes and his financial wrongs.

# posted by

Mark Field : 8:57 AM

"The GOP is doing so and I suspect that is the unspoken issue here. "

For very loose values of "doing so"; The DOJ doesn't do truth and reconciliation, they do criminal indictments, where the defendant has all sorts of legal rights.

"Linsey Graham's Senate Justice Committee is ramping up hearings on the spy operation and perhaps the Biden/Bursima pay to play operation."

I hope you're not expecting anything to come of THAT. He's just engaging in a bit of theater, the last thing Graham would want to do is actually accomplish something in that area.

"I am not naive enough to believe that the long delay of both of these into Trump's reelection year is an accident."

My take on this is that the DOJ actions had to wait on Trump actually getting enough control of the DOJ that the investigations wouldn't be sabotaged too badly, though it's certainly possible they're dragging things out a little to benefit political timing.

And Graham is just doing his usual pre-election "No, really, I'm a conservative!" act, which he always abandons once the election is past.

# posted by

Brett : 9:01 AM

"I didn't say that, though I can see how the context might have led you to that conclusion. But no -- I'm skeptical of whole idea and prefer standard court actions for both Trump's crimes and his financial wrongs."

Glad to hear that. Alleged crimes, remember.

That's my position: Full criminal trials with every procedural right respected, or forget it. I think you can't realistically expect a party to police it's own, so having the other party police them is the only alternative to anything goes. But it's got to be through the full judicial system, not some informal star chamber.

# posted by

Brett : 9:04 AM

Brett, your statement about "criminal indictments" would stand, except for the tiny fact that there haven't been any. Comey? Nope. Clinton? Nope. McCabe? Nope.

In fact, there have been no indictments over the "investigations" into supposed wrongdoing by anyone involved in the Russia investigations. Instead, the people have been held up for ridicule, shuffled off to the side, and pushed out.

# posted by

C2H5OH : 9:08 AM

Mr. W:

When one political party criminally abuses government powers to conduct intelligence gathering and law enforcement to spy on and harass the political opposition, history demonstrates the criminal party will not bring theselves to justice. The political opposition needs to take power to enforce the law. Naturally, the criminal party will hypocritically claim the other party bringing them to justice violates "norms" of bipartisanship, nonpartisanship, or law enforcement independence.

Once again, in these situations, what matters is the EVIDENCE.

Law enforcement "investigating" the political opposition with no substantive or fraudulent evidence of crimes is itself acting in violation of norms and likely committing crimes.

Law enforcement investigating the political opposition with substantive evidence of crimes, even if part of the motivation is partisan, is perfectly proper.

This is the situation we find ourselves in today.

# posted by

Bart DePalma : 9:14 AM

"In fact, there have been no indictments over the "investigations" into supposed wrongdoing by anyone involved in the Russia investigations. Instead, the people have been held up for ridicule, shuffled off to the side, and pushed out."

You don't need to prosecute your own employees to fire them. But, make that "no indictments yet. As I said above, it has taken an unreasonable amount of time for Trump to get functional control over the DOJ. Indeed, delaying that may even have been the primary purpose of Mueller's investigation; So long as he was pursuing it, any personnel changes could have been construed to be obstruction of justice, just as firing Comey was used as a pretext for appointing Mueller.

# posted by

Brett : 9:21 AM

If I were someone like Bart, at this point I would make some asinine bet to the effect that there will never be any indictments. But since I'm not, I'll merely point out that it has been several years, investigations by Congress and by Inspectors General have turned up nothing worth a criminal indictment, and that there's no evidence that there is a pony in that pile.

# posted by

C2H5OH : 9:32 AM

"But it's got to be through the full judicial system, not some informal star chamber."

I don't think you know what Star Chamber was, other than a buzzword. Some key differences between that and a T&R Commission:

1. Proceedings in Star Chamber were secret. T&R Commissions operate in public.
2. Defendants in Star Chamber could be forced to testify and were subject to criminal punishment. With a T&R Commission, testimony is voluntary, with the incentive of immunity if it's full and truthful.
3. Star Chamber was controlled by the Executive, outside of the courts or legislature. A T&R Commission would be established by the Congress and ultimately subject to the courts (over claims of immunity or perjury, say).
4. Torture.

# posted by

Mark Field : 9:47 AM

"My take on this is that the DOJ actions had to wait on Trump actually getting enough control of the DOJ that the investigations wouldn't be sabotaged too badly, though it's certainly possible they're dragging things out a little to benefit political timing."

As we saw re impeachment Bircher Brett's selective conspiracy paranoid hyper-skepticism about the other side is only matched by his naive child like hyper-credulity towards his side. Even Bircher Bart recognizes this for what it is.

Partisan incoherent.

# posted by

Mista Whiskas : 10:13 AM

"When one political party criminally abuses government powers to conduct intelligence gathering and law enforcement to spy on and harass the political opposition"

Of course this is ludicrous and every accusation is a confession. If the Obama administration were conducting a dirty tricks campaign against the Trump campaign why did they keep all that dirt tightly secret during the campaign (while breaking norms to sully Clinton)? Also, as the IG found and any one with any passing knowledge of, say, who Manafort is knew, there was more than enough justification for looking into the campaign. It was rife with foreign agents.

"history demonstrates the criminal party will not bring theselves to justice"

Actually this happens all the time (it even happened in this administration re Parnas, Cohen, Flynn, etc., but of course now the administration is sabotaging that, which is the very topic we are on) because we have strong norms of DOJ independence. Of course the Trump administration is now attacking that. Our Jacksonian Birchers, knowing not a whit about professional norms and their key importance here, of course care not and actually cheer this abuse of office for political entrenchment on. It's what they'd do, after all. They have no principles save partisanship.

# posted by

Mista Whiskas : 10:18 AM

Remember back during impeachment Birchers Brett and Bart said it was fine and dandy for a hypothetical sheriff to, upon hearing someone was going to run against them and was popular, to instruct his deputies to follow the someone around looking for any possible crime to happen. The flip side of this, which there is evidence Trump is doing right now, would be to instruct his deputies to turn a blind eye or stop any investigations that might tarnish the sheriff. This is a gross violation of law enforcement norms, what happens in a banana republic and it's the death of democracy. And they're not only fine with it, they cheer it, because they have nothing but disdain for the idea of professional norms and democracy as they've demonstrated many times here. Everything is just a partisan power play for them: anything that puts their side in power and protects their guns, white privilege and such is not only allowable but to be cheered. This is natural when you live as a conspiracy extremist where the other side is always up to a nefarious plot to do X and Y and any X and Y is always the most awful parade of horribles to be imagined.

In other words, these people are the modern equivalent of Birchers. The epitome, in fact. They're a rot on our republic and conservatism (which is pretty well rotted at this point).

# posted by

Mista Whiskas : 10:28 AM

"4. Torture."

Indeed. But of course our Birchers think torture is great, they championed it when W did it.

Every accusation is a confession with these people.

# posted by

Mista Whiskas : 10:30 AM

The left have been losing their capacity to admit that it's actually legitimate for anybody else to win elections or govern for years. What's proposed here is just the next step: Demanding that Republicans publicly agree with that sentiment, or be destroyed.

Why is it suggested to avoid prosecutions? Because criminal trials still carry annoying safeguards.

"The left" if anything doesn't want to avoid prosecutions. Not prosecuting is something that both sides over the years deemed an important norm, if one with some dissent from both sides too.

Also, as Mr. W. (Pat Buchanan and Gary Johnson supporter in past campaigns, so typical leftie) notes:

I think the idea is that there is a very serious possibility that the Trump administration re the DOJ has violated the kind of professional norms that are required for the Executive branch to be anything other than a potential horror show and therefore our Republic a banana one. These may or may not involve enumerated criminal offenses or justiciable constitutional violations, however they direly need to be addressed.

Likewise, non-criminal proceedings have safeguards; Mark Field cited some. But, this is basic stuff. For instance, during the McCarthy years, there were court opinions guarding against abuses of congressional investigations. Which you know will happen with or without this commission idea, and be more partisan (no Never Trump co-chairs etc.) and with less safeguards probably in the process. But, even there, not nothing.

"The left" has accepted that Republicans have won elections legitimate over and over again. The "anybody else" is b.s. There are a few cases (such as the Stacey Abrams election) that was seen as tainted. Plus, involvement -- see a report put out by a former FBI head appointed by George W. Bush -- of a campaign with the Russians in various respects (with some prosecutions arising from it) very well seems tainted.

The Barr Justice Department has repeatedly done things that shame the office. It warrants investigation of some sort. Those consistently concerned about federal governmental power and abuses of the same would agree.

# posted by

Joe : 10:34 AM

Fair enough, calling Tushnet's "commission" a star chamber was hyperbole.

As described, it's more of a joke than anything else; Supposedly bipartisan, but with the Republicans NOT being NeverTrumpers.

But Trump has an extremely high level of support within the GOP, and narrowly losing an election is unlikely to materially change that. Realistically, the only Republicans who would cooperate with his proposed commission WOULD be NeverTrumpers. And any closeted NeverTrumpers who cooperated would be effectively announcing their retirement from Republican politics.

The only realistic way you could change that would be actually going forward with criminal prosecutions, and successfully obtaining convictions on offenses Republicans would agree were real crimes. (No Logan act prosecutions, please!) Merely asserting that crimes were committed would accomplish nothing. You've been asserting crimes and failing to prove them through the entire Trump administration.

So I really don't see the point of the proposal, unless either the plan is just to stack the commission with NeverTrumpers and pretend they aren't, or to condemn the GOP for refusing to cooperate.

Prosecute or go away. The proposal is a joke, or a plan for an outrage if it is actually intended to have legal powers and the ability to impose consequences.

# posted by

Brett : 10:36 AM

"Supposedly bipartisan, but with the Republicans NOT being NeverTrumpers."

Bircher Brett really struggles. Tushnet's OP argued that "The commission would have to be as bipartisan as is possible these days -- which means co-chairs, and no "Never Trump" Republicans. He misses that the reason Tushnet says the commission shouldn't have NeverTrumpers is because that would be seen to sabotage the bipartisanship (if the only Republicans on it were NeverTrumpers the mostly Trump supporting GOPers would work themselves into a lather).

# posted by

Mista Whiskas : 10:52 AM

"So I really don't see the point of the proposal"

I think this is correct. Birchers like Brett really don't (and can't) conceive of the importance of professional norms which, the violation of, may or may not be technical criminal or constitutional violations, and which the allowing of undermines our Republic. Of course that makes such a proposed commission all the more important: one thing a commission, as opposed to prosecutions, can directly address is re-enforcing the importance of such norms (for example, the Wickersham and Kerner commissions recommended reforms and changes in law enforcement practices to further the professionalization of law enforcement in ways that were not exactly prosecutable offenses if not followed).

Someone like Bircher Brett of course can't conceive of non-partisan professional norms and their importance, indeed to the extent he can he has disdain for them, they're at best 'covers' for the supposed vulgar partisanship he, in an act of projection, sees conspiratorially in everyone he disagrees with in the moment and at worst obstacles to his beloved side entrenching themselves so it can ward off the ever-present existential threat he sees in the 'other side.'

# posted by

Mista Whiskas : 10:58 AM

So, let's be clear here. The charge is that there's evidence that the Barr is acting as in essence Trump's campaign counsel, dismissing cases and initiating cases for selectively political reasons. Of course Bircher Brett can't see the point of a commission to get to the bottom of that kind of thing, condemn it if it exists, and exhort the reinstatement of primacy of professional norms and ethics in the DOJ: in fact, he is on record here saying he *champions* that kind of thing (unless he thinks the other side is doing it, then it's awful of course [see his kooky comments re: Cohen and Parnas prosecutions], he's ever the partisan incoherent).

# posted by

Mista Whiskas : 11:02 AM