I've got a piece up at NRO about about how nobody — even Trump-haters like me — should be comfortable with federal prosecutors' broad power to catch people not for underlying misconduct, but for reactions to the investigation.
Last 5 posts by Ken White
- CNN, Doxing, And A Few Ways In Which We Are Full of Shit As A Political Culture - July 5th, 2017
- How the Southern Poverty Law Center Enraged Nominal Conservatives Into Betraying Free Speech Values - June 29th, 2017
- Shock, Dismay In Academia At Scorpion Acting Like Scorpion - June 28th, 2017
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
- The Power To Generate Crimes Rather Than Merely Investigate Them - June 19th, 2017
I have to say that I'm surprised you're writing for the National Reconnaissance Office. But then, the mission patch for NROL-39 seems oddly fitting.
http://www.businessinsider.com/nrol-39-logo-nothing-beyond-our-reach-2013-12
Now why did you not bring up the Clinton – Lewinsky affair? If there has ever been a case of a special prosecutor gone wild, that's it. He was hired to investigate insider trading and came up with him boinking an intern. No crime, except for lying.
Thing is with Trump, he fired the guy who was in charge of investigating his (and his staff's) ties to Russia, after asking him repeatedly to drop the investigation. That goes beyond "reacting badly" and enters "holy crap did he really just do that?" territory.
In the meantime, a video came up on my Facebook wall: "Lawyer was arrested for defending her black client"
https://www.facebook.com/PanAfrootsmove/videos/vb.265201130527872/406627063051944/?type=2&theater
Obviously there's more than that headline going on here, but what strikes me is that the lawyer was arrested for resisting arrest. Don't suppose you could find some detail on this?
Nice article, Ken.
I have mixed feelings. I strongly disagree with the scope to which 1001 has been given by the courts; I vaguely remember a case that upheld a conviction in which the defendant lied about his whereabouts not to the federal agents, but rather his wife, who then passed that lie along. I do, however, support the principle of 1001 and similar laws that make it illegal to blatantly lie to investigators.
What also bothers me is the apparent disparity between the level of enforcement of the state and federal False Statements laws and perjury laws. I can't recall a perjury prosecution involving the sort of dodges, evasions, immaterial lies, or honest, unintentional misstatements of fact would routinely get you in trouble if made during an investigation, but outside the courtroom.
Also, Ken, any chance for a post on the Slants ruling? I've only read a few headlines, so I'm curious whether this completely reverses course on trademark law with respect to disparaging marks, or if they somehow managed to keep the ruling narrow.
Thanks, Ken, for attempting to expand the minds of the Law'N Order conservatives to embrace the possibility that there just might be something wrong with unlimited power bequeathed to a police agency without any real accountability standards.
It didn't take long for the apologists to start misrepresenting your anecdote in the comments, did it?
I think that what might be interesting is to hold the government officials to the same standard of truth and punishment as they hold the citizenry.
How about we prosecute government officials, including LEOs, for lying to the citizenry? That would sure equalize the playing field.
Pipe dream to be sure. How many testilying cops are prosecuted for perjury? Very few unless they piss off the prosecutor or commit the cardinal sin of embarrassing a politico and causing them to lose votes.
Ken, when you write articles for other sites like this, how often will readers "follow you home" to Popehat to comment?
That reminds me a lot of "resisting arrest" charges, particularly when cops are pretty vague about what the "arrest" in "resisting arrest" was about initially. You should only be arrested for a crime, and a part of the 5th amendment was supposed to be a shield against your trying to protect yourself (a reasonable human reflex).
Being charged with defending yourself (even in stupid ways, which panic is prone to inspire) should definitely not be a charge by itself. That should also apply even if you don't know you don't have anything you need to "defend yourself" from. (ie. if the agents didn't intend to charge you with anything to begin with.)
I imagine it's difficult (or everyone would do it right), but there are two things to remember when talking to LEOs (cops, feds, or whatever).
1- Shut up and call for a lawyer. Never answer anything else.
2- The person asking questions is not your friend, no matter how friendly he acts. He will not help you because you confess. It won't be "done in a few minutes and you'll be free to go" if you start talking.
The moment you talk, they will trick you, trap you, use any small mistake, even if you genuinely couldn't remember right. (That meeting you thought you didn't attend on the 13th because you remember the meeting being on the 14th? Tough luck, you just "lied" to the government agent. The fact that they asked the question at 4am didn't help, but that was part of the trap. Refer to rule #1.)
There is a culture in US (and several other countries, sadly) that prosecution is not about "truth" but about "winning a case". It doesn't matter if you caught the right guy as long as you managed to secure a conviction against someone. It doesn't matter if the crime was minor and the suspect is not a danger to anyone, the longer the punishment, the better.
"Justice" has become a competition instead of a search for truth and social order. Related concepts like for-profit prisons obviously don't help either.
The power to generate false evidence of crimes by coercing witnesses to lie, committing gross prosecutorial misconduct, and hiding evidence that would exonerate the target is also a problem. Another problem is whitewashing criminal behavior as "reckless". See Not Guilty: The Unlawful Prosecution of U.S. Senator Ted Stevens. (This was while Mueller was head of the FBI by the way.)
The 5th Amendment is there for a reason. Use it.
@IForgetMyName
I've no idea what Ken will write about. But another SCOTUS decision today, Packingham, might be more interesting. It's just not often that SCOTUS talks about social media, criminal law and the First Amendment in a single ruling.
I have to say, I'm with Ben on this one. I don't see any connection between the Trump obstruction investigation and the cases you describe.
Here are some comparisons:
* Your client was taken from his home by surprise. Trump initiated the discussions with Comey.
* Your client, and most of your examples, are of people significantly weaker than the investigators. Trump is the president of the United states of America, with the power to fire the head of the FBI.
I'm not saying you're wrong. I am saying that I'd like some explanation how the generic problem is related to what we're seeing with Trump right now. I don't feel you've done enough to tie that in a convincing manner.
Shachar
I agree with the comment above that some of us suspect that the Trump–Russia investigation has seen some actual and deliberate attempts at obstruction of the sort that the law originally envisaged rather than just what it's been used for. I am concerned about the statute's misuse, but I'm not sure that this is an example of it.
That being said, it's an excellent way to try to get some Trump supporters to question whether state power should have limits, so.
Am I the only one seeing the FBI slowly transform into the KGB? I mean, we're not there yet but we are most certainly on the path.
"Thing is with Trump, he fired the guy who was in charge of investigating his (and his staff's) ties to Russia, after asking him repeatedly to drop the investigation. That goes beyond "reacting badly" and enters "holy crap did he really just do that?" territory."
@Ben
Come on, do you actually believe what you wrote? By Comey's own admission Trump wasn't under investigation personally. And based on Comey's memos, he didn't ask him to drop "the" investigation, he "hoped" he could let it go. Hoping something happens, is not a crime yet in this country. Not to mention it is within the President's authority to fire the Director of the FBI. Do you really believe the investigation was put on hold when Comey was fired? Everyone under him just stopped what they were doing and "let it go"? As you no doubt noticed that isn't the case. No matter which way you lean politically, we as American's, can't begin a discussion about Federal Overreach in matters pertaining to Justice when we are squabbling over idiotically divisive issues like "Russia hacked our Democracy". Of course, I am of the opinion that the Russia issue has been designed by the status quo to do just that and prevent us from coming together on issues where we share a common interest.
And there goes your credibility. The President of the United States calls you in his office, boots everyone else out, talks about loyalty a lot, and then "hopes" you'll do something and that's not telling you to do it? Jeez. If you were my defense lawyer, I'd fire you in heartbeat for going with *that* line of logic.
@Erik, no, that's the DHS. Literally.
As I understand it, KGB was an acronym for "Ministry for State Security". DHS is "Department of Homeland Security". What's the difference?
@Corey
I feel like this is one of those instances where the phrasing is ambiguous, and whether the intent to give an order (or else) is something that needs to be determined by the finder of fact after a thorough review of the circumstances and any relevant documents or other evidence.
By your logic, "This is a nice shop you've got here, it would be a shame if something were to happen to it" is not a crime, period. As someone with some familiarity with prosecuting those sorts so cases, I can tell you for a fact that you can't say definitively, from the words alone, whether there was a crime occurring, or merely a concerned citizen expressing his sincere hope that no unexpected mishaps befall a local businessman. Fortunately, most people aren't so deliberately obtuse: They can usually tell from such subtle details as whether Tiny and Big Tony were standing behind the speaker carrying baseball bats while the speaker was expressing concern, or if the speaker has a history of expressing concern for the well-being of others and subsequently receiving an envelope of money as an unsolicited gift.
Whether the President did something (not I'm not even saying, "did something wrong" depends entirely on context and his history. Does he always spell out his ultimatums literally, or has he in the past "expressed hope for something" in private to someone who had the power to cause that hoped-for something to happen, and then retaliated against that person when the hoped-for thing didn't occur?
@Jim Tyre,
Thanks, I didn't even notice that other decision, and I would certainly be interested in seeing what Ken has to say about it. It's definitely an interesting ruling on some contemporary and unsettled issues.
The reason I'm more interested in the trademark case is that it's just the opposite: The disparaging trademarks rule is old, and until recently pretty well-settled law, but it's also essentially a mandate for the feds to place a value judgment on the content of speech. Strictly speaking, it's not really censorship–there's nothing stopping, for example, the Redskins from continuing to be the Redskins, even those they lost their trademark protection. However, trademark protection is essentially a taxpayer subsidized grant of legal rights and privileges that most people have access to, and denying that access based essentially on a government morality test of the trademark strikes me as highly coercive.
@Total
So you are able to make a judgement as to his intent without being privy to all the facts and without actually being in the room? Your cognitive dissonance is telling.
Yes, I am. For why, see my previous comment.
@IForgetMyName
I agree and appreciate your response. Although somewhat hastily crafted, the underlying reason for my reply was only to express frustration that we cannot see through "BS" being flung at us from all directions and no matter the political affiliation, the survival of the Republic depends on the discourse between us. It seems we are impossibly far apart, when in reality we share more common interests than we know. All we see is a side, you are either this or that, no in between.
@Corvey
Right back at you: do you really believe what you just said?
Trump "hopes" Comey will drop the investigation and fires him when he doesn't.
Do you really want to say that "dropping the investigation" was just a "hope" and not an "order"?
To take another example, a guy in a black suit with a heavy sicilian accent and a few mean-looking similarly-dressed fellows tells you he "hopes" you will pay him a monthly fee when you open a store in his neighborhood. For protection. Because he wouldn't want anything bad to happen to your business. That seems extremely cliche, but what in this sentence is a crime? "Hoping" for a monthly fee? "Hoping" that nothing bad happens to you?
Seriously, the semantics defense ("he only hoped Comey would end the investigation, hoping is not a crime") could only hold up to the point he fired Comey. And he even at some point admitted he fired Comey because of this very investigation (which might not be conclusive evidence to a Trump apologist like you because he and his administration gave at least three different reasons). So, when he did fire Comey, that was a clear case of obstruction, and the "hope" was to be understood as an "order", which Comey understood properly but refused to follow.
@Wyrm
The fact that you offer up a made up mobster example and equate it to what took place in the Oval Office, as well as branding me a Trump apologist, only makes you partisan. Sad really, as you know as much about me as you know about Trump's intent.
Trump apologist
More of a Trump fantasist, actually.
Ken, as part of this you imply that one thing you'd like is a change in the law defining a material lie from "could" mislead law enforcement to "did actually" mislead.
Would you like to change obstruction of justice laws in any way that would have a practical effect on the investigation into Trump?
@Total
Your rhetorical skills are enviable.
Thanks!
@Corey @Total: I think you're both missing the most important point in your argument over whether "I hope you'll let this go" is a threat or not: that it's an argument neither Trump nor his lawyer is making. While several Senators (all of them Republican) made that argument during Comey's testimony, and Donald Trump Jr has since made it in TV interviews, President Trump and his lawyer have both claimed that he never said it at all. They're not playing the "he just said 'I hope'" semantic game; they're claiming he never said it.
So, Corey, I put it to you: the President and his attorney don't seem to think that the argument you're making is very convincing. So why do you?
Spoilsport.
@Corey
– Yes, I made a metaphor picturing Trump as a mafia boss. I'm not the only one, both in this thread and in other places.
– I don't know if you are a Trump apologist in general, but your original comment was a Trump apology that I found pretty unreasonable. Assuming that because he used the word "hope" he never meant it as an order is a pretty weak excuse.
My bad if you took it as a critic of your personality as a whole when I only mean to criticize the one thing I knew about you: this comment.
My apology aside, I stick to my position: Trump acted like a cliched movie mafia boss and firing Comey after he declined to act on this thinly-veiled order is a pretty strong hint.
Now, if you don't have stronger argument in favor of the "hope defense" than attacking my lack of precise wording against you and your comment, I'll move on.
@Thad
That is an excellent point and one I hadn't completely considered. The back and forth with Total came from my response to Ben who to me was framing a narrative that Comey was fired because of his investigation into the Trump Campaign/Surrogates/Ect. We haven't been provided any evidence that this is the reason. Until we see that I find it hasty to convict someone in the court of public opinion.
@Wyrm
No apology is necessary. I didn't take it as a critique of my personality, it seemed only to be a partisan defense of your beliefs. I am with you, the optics of what took place look bad, but bad optics doesn't equal guilt (or that a crime was even committed). I am not an apologist for Trump. I am tired of non truths being parroted around as fact and conclusions being drawn without evidence by people who would rather divide on party lines than debate on the merits of the evidence available to us. We can speculate all we want about what happened, but all that does is whip one side or another into a frenzy. Then the other side sticks their fingers in their ears. I don't consider myself to be particularly enlightened, only someone who strives to seek the truth. I have found that criticizing people on message boards comes easy but working on ourselves is much harder. Once we realize we are being conditioned to pick a team, we can start to have real conversations about these issues.
@John: it seems pretty obvious why Ken didn't mention the Clinton-Lewinsky case: he's writing an article for National Review. Saying something that could be seen as positive towards a Clinton would be a very rapid way of never writing another National Review article ever again.
"But when I have, I'll have figured out a way that Trump isn't at fault here, either."
IForgetMyName says June 19, 2017 at 10:29 am:
As long as prosecutors get to decide what is a lie, or a "blatant lie", or a 'material lie", some hot dogging prosecutor will try to make a political score by turning "who do you think will win the pennant this year?" into a "material" question.
Nobody has taken an oath to tell the truth to cops or to anybody else in casual unsworn conversation. But, the only alternative to telling the most intricate and well hedged truth to any cop's offhand question on any subject is that some hotdog prosecutor can turn your life upside down if the cop decides he thinks your answer is not true enough or otherwise doesn't suit him.
To believe that cops and prosecutors don't engage in this behavior just because they can, is to believe in the tooth fairy and Santa Claus.
Perjury requires an oath to tell the truth, the whole truth and nothing but the truth. An offhand conversation with a cop or other government official, even an interrogation that you haven't yet said "I want to speak with my lawyer", is not sworn.
You cannot commit perjury without being sworn or taking an oath. That is why you will see "…under penalty of perjury…" in various documents. Signing that means your statements are sworn.
Lying to a cop or to any other government official in an unsworn statement should carry no criminal penalty at all. Otherwise the door is open to the worst behaving prosecutor or other government official to turn any citizen's life upside down on a whim. And they almost always get away with it.
I think this is the first article I've read of Ken's that I disagree with. I'm so disillusioned.
I tend to agree with others who think the link between Trump's tweets and Ken's client's 6 AM misadventure is tenuous, unless we're giving Trump a handicap, which perhaps we should. Also, the story made the Google News home page, at least for me:
The link's not showing – was just a screenshot.
En passant
This is a valid point, to the extent that a troublingly disproportionate number of judges are former prosecutors, and to the extent that the public tends to favor prosecutors more than the other side. Strictly speaking, this is not true. A prosecutor doesn't "get to decide" what is a material lie, any more than a plaintiff "gets to decide" whether something was a proximate cause. The party filing gets to decide whether or not to begin the case based on their own determination of whether something is material, or whether something is a proximate cause. During the case, they get to argue why their determination is correct; the defense can argue why it is not. The finder of fact, if a jury, is told what the definition of material is in this context (or proximate cause); if the finder of fact is a judge, hopefully he already knows. Then the finder of fact gets to make a determination based on the evidence and how well each side argues the evidence.
Does the prosecution start off with a lot of clout? Absolutely. However, your assertion that the prosecution can designate something material, and that's the end of that, is inconsistent with both common sense and empirical evidence. If a prosecutor wants to argue that a suspect who chatted with an agent about a baseball game and got the score wrong make a false statement material to the investigation, he's free to do so; he's also not going to succeed unless the defense is sleeping on the job and the judge and/or jury is developmentally disabled.
I skimmed the rest of what you said, but I really have no response because you clearly misunderstood the portion of my post that you quoted and presumably responded to. Instead of sentences, I'll try a flow chart to clarify.
Suspect lies about alibi when questioned by police. -> Police finds evidence hew as lying -> High % probability that he is prosecuted under 1001.
Defendant lies about alibi under oath -> Court finds that the defendant lied -> Substantially lower % probability that he will be prosecuted for perjury for saying the same lie under oath -> This bothers me.
Or perhaps an analogy would help you to understand. It wouldn't bother me if the number of men charged with tax evasion was substantially higher than the number of women. It wouldn't bother me if that number were substantially lower than for women. What would bother me would be if, after a career in which I've seen a huge number of tax evasion prosecutions, I noticed that for one gender, prosecution is likely even if they evade a small amount of tax owed, while for the other gender, prosecutions only occur if the taxes owed are in the millions.
Bravo En Passant, very well said. I've never agreed with the federal lie statute. As you said, without being under oath lying shouldn't be any more illegal for a civilian than it is for the police when they outright lie to you to get you to confess to something you didn't do.
The police and FBI routinely lie to and mislead suspects to catch them. There shouldn't be any criminal penalty for lying back when you aren't under oath. They want to make it official and put you under oath they can in a nice formal trial.
Thanks Ken for the article. After eight years of "The Injustice Department" this weaponized form of government will need time and blood to get sorted out.
So is this all one big piece of performance art for you, or do you really think that your life is a Hunger Games sequel waiting to happen?
Are avatars involving guns and vague calls for "blood" the right-wing equivalent of Che Guevara shirts and vague calls for "revolution"?
If I had written that article I would find it very discouraging that so many of the commenters entirely missed its point.
This kind of behaviour from prosecutors ought to be considered as equivalent to entrapment.
IForgetMyName says June 19, 2017 at 10:22 pm:
Prosecutors can (and do) present all manner of police and prosecutor's office investigators as "expert witnesses" as well as percipient witnesses, and courts accept them as experts merely by virtue of the fact they are cops, because cops are experts on everything.
Prosecutor presents his "expert" investigator who states, "When I spoke with the subject on the streetcorner, I asked 'who do you think will win the pennant?' He said 'The Cubs.' By virtue of my expertise in [everything known to humanity], I decided he was too stupid to be running bets for a bookie, so I didn't pursue him as a suspect. But subsequent investigation following other leads and sources developed evidence that he may have been running bets. His statement 'The Cubs' materially impeded my investigation."
The judge will solemnly intone that the prosecutor and his investigator are absolutely serious, and subtly suggest to the jury that if they don't convict, they might even be considered to be aiding and abetting a crime. They will convict.
Have I put all bad prosecutors, cops and judges, and obsequious, ignorant jurors, into one example? Yes. But there are already plenty of bad cops, prosecutors and judges, and obsequious, ignorant jurors. Eventually enough of them will wind up in the same room on the same case to make it happen.
How in god's name did you decide that the abuse of authority to make said authority immune to investigation or prosecution was the same as a, "lying to the man," technicality? We need laws that prevent that kind of abuse of authority, they're there for a reason. This is one of your worst viewpoints, to date.
When exactly does trying to get an investigation dropped rise to the level of "obstructing justice"? Can a chief of police tell one of their detectives to drop an investigation because they need them focused on something else? Because it's wasting resources? Because it's angering the public? Because it risks blowing a more politically rewarding investigation?
Can a president fire a DEA director for continuing to pursue Colorado dispensaries against the President's wishes?
Comey could have just asked Trump to clarify what "I hoped" meant. Because he didn't it's now necessary to crawl into Trump's head and discern what he was thinking. Anyone who tells you they know that answer who's name isn't DT is lying. Given this and the apparent lack of evidence makes this an attempted cover up of a non-crime which makes it even more questionable.
If you think you can push a President out of office on this weak tea, every president from here on out can be expected to serve approx. 6 days before being pushed out of office on similar things.
Yeah, that's high in the plausibility stakes:
COMEY: President Trump, when you just said "hoped" did you mean it in a non-prescriptive way, or was it one of those things where you said "hoped" but it's really an order?
PRESIDENT TRUMP: What?
COMEY: Uh…
PRESIDENT TRUMP: I hope and trust that you understood what I meant.
COMEY: Sure, but…
PRESIDENT TRUMP: You're fired.
COMEY: Why?
PRESIDENT TRUMP: Because you wouldn't give up on this Russian thing.
It seems to me that the main point of Ken's article, at least at this very moment, applies much more directly to Flynn (who is suspected of lying to the FBI), than it does to Trump.
It seems to me like there's a significant distinction between "agents running a perjury trap" and "target of investigation fires the investigator after he refuses to take the hint to drop the investigation" that your column is ignoring.
Your overall point isn't incorrect, but it's application to the trump situation seems to be inapt.
Considerations of prosecutorial overreach as applied to the President are overblown, even pointless, so long as his party retains control of both House and Senate.
To complete this analogy, the Chief of Police would be seriously implicated in the eventual outcome of the investigation. E.g., detective is investigating a drug cartel, turns out the Chief is getting kickbacks from the dealers.
So the question as to whether Trump firing Comey amounts to obstruction of justice depends entirely on how involved he is in the investigation into his staff's ties to Russia.
Flynn's not the only one in Trump's team who has lied about ties to Russia, but the FBI isn't investigating them because they're liars. They're being investigated for something more along the lines of conspiracy, or treason.
@Richard Smart:
What you're saying has some truth, but at the same time, similar arguments can be used to justify this sort of overreach in a wide range of circumstances, many of which you might not be so glib about. The most dangerous criminals are often the most successful ones. A lot of people (myself included) can see the merit of trying to overwhelm of the legal counsel of a wealthy white collar criminal by giving them a lot of work to do, trying to defend against an investigation while not reaching the level of criminal obstruction or non-compliance. There are always criminals who are especially bad, or especially well-protected, for whom it seems like the nuclear option is both necessary and justified. The problem is that it's difficult to write a law that can only be used for these exceptionally bad criminals, and it is human nature that if prosecutors are given a tool they are permitted to use on anyone, then they will use it on everyone.
Of course, that is true only of laws such as 1001, specifically written to be such a tool. If we're talking about prosecutorial overreach more generally, it's even worse. Many of the more questionable tactics used by prosecutors aren't delineated in statute, but rather norms of acceptability, powers that have over time been exercised by prosecutors and investigators and implicitly endorsed by the failure of courts and elected officials to sanction their use.
Although prosecutorial overreach is a problem. I wonder whether Ken would prefer to all of us to have the ability to fire those in charge to "ease the pressure" from the investigation.
Comey was bothered by the "hope" for Flynn. It wasn't something he was going to publicly address until he was fired under seriously questionable circumstances.
Even then he wanted an independent investigation not an immediate filing of charges. Hard to see overreach here.
I agree with Ken's general argument but I am not so sure the is the wagon to attach that pony to.
I don't want to go too far on a tangent here, but Trump supporters seem to be saying that because Comey didn't provide all the evidence his investigation collected, that the evidence doesn't exist, despite the fact that it's still an ongoing investigation. The FBI's poker face is pretty strong, and they don't play their hand until they hold a royal flush. (https://www.popehat.com/2016/05/25/fbi-actively-investigating-prenda-law-team-for-fraud/)
To amplify what Ben said. Anyone saying that "hoped" might be a completely innocent word to use in this scenario is, essentially, saying that an investigation whether obstruction of justice took place is warranted.
Saying "You now have to look inside DT's head to know" is saying "we need for there to be an investigation". And yet, it seems to me those saying it are suggesting that the investigation is an overreach.
Shachar
@Ben
Thanks for the quote, but not a Trump supporter.
If you can show me where Comey pushed for an investigation into obstruction before he was fired, I'll be happy to consider those facts. But I'll go by Comey's public testimony as to the timeline of his decisions.
Comey left it up to Mueller to decide, and worked hard to force an independent investigation to make sure he would once he had been fired. This is the exact reason, according to Comey, that he made sure his memos went public.
Comey however did not give the conversations he had with Trump to those investigating Russia till after he was fired. It appears that the conversations, by themselves, were enough to warrant concern enough to write them down, and make sure that other confidants knew that at the time, but not enough to either give them to investigators nor start an obstruction investigation.
Clearing the room, using the "hope you can let this go" isn't innocent, but as Ken goes for in his article- is far from enough, and you wouldn't want the government either starting or resting a case based on that behavior.
Now firing a sitting Head of the FBI to "ease pressure", Trump's own words, from an investigation appears to be something that both Comey and Mueller see a difference in. At the very least, enough to investigate. Ken appears be concerned that, at this point in time, that we should be worried about overreach. I don't think so. Further attempts by the Trump to both discredit Rosenstein the the acting AG for the investigation, and Mueller, the investigator is also troubling considering the President by position has the power to fire both individuals.
We don't have all the facts of the FBI's, Mueller's, or Congress' investigations. We cannot claim to know what they will or will not find. This is why one investigates, instead of getting out the pitchforks.
It is the firing that led to the obstruction investigation. It continues with the semi-threats against Rosenstein and Mueller. The early conversations with Trump are about showing an earlier pattern of behavior, not a single instance.
This all has to be taken into account with Trumps comments on why he does what he does.
The FBI are people. If we assume the only time they speak is when they have a "royal flush", we will be continually at risk of trial by public opinion versus courts. Check Comey on Hillary's Emails and see the FBI trying a case in public instead of in court. That should've ended his career. But it was not what he was fired for.
I think Trump is very capable of obstruction because of concern over where an investigation might lead, without being guilty of collusion with Russia himself or that of his campaign. At the very least, it comes across that he fears some members of his campaign and even himself, might get tried or convicted on some charges. It might because of paranoia, or it might be actual criminal behavior at this point we don't know.
But if Trumps actions, by trying to save him and his followers, obstruct the FBI from investigating very real crimes that other people may be guilty of. People he is not trying to protect, but other criminals out of fear that he might get tied up in it? By a President, obstruction all the way. With an oath to uphold the Constitution? You bet.
There still is, regardless of Trump, an actual reason to investigate Russia. You see, more than half the States were hacked. There was a concerted effort at propaganda through internet sights that was taken up by Americans, and even, apparently, Comey himself. There are reasonable questions as to the flow of money, and the influence of foreign agents like Flynn. Regardless of whether Trump and his campaign were involved we still need to know the extent of what happened and whether any more crimes were acted out. To obstruct this is wrong. Especially by a sitting President who, at best, just wants comfortable ignorance to put himself at ease.
And this is why I didn't want to get too tangential. Sorry if I implied you were a Trump supporter; just that was an argument I had seen elsewhere.
Except that he didn't. The media blew it up, not the FBI. Comey/FBI only made their findings public once the investigation concluded, and they didn't hold the hypothetical royal flush. They determined there was not enough evidence that a crime had been committed to take it to court, and made that public knowledge.
In contrast, the Trump/Russia connections are an ongoing investigation, so obviously there's no publicly available evidence or outcome (much to Sen. John McCain's chagrin). And supporters, Comey, Mueller, and Trump can say Trump wasn't being investigated directly before Comey got fired, but given the number of Russian connections in the staff he directly appointed, he was always going to be implicated in that investigation. Any pressure he put on the FBI and its investigators, whether that's "I hope you can drop this thing with Flynn" to "you're fired" is potentially an obstruction.
Tangent over. Now returning to your regular sine waves.
Dear Ben,
Exactly. Since the FBI "determined there was not enough evidence that a crime had been committed to take it to court", it's hard to see how "lock [Clinton] up" was a real possibility.
That is also of tangential relevance to impeachment of Trump. Construing obstruction of justice from "I hope you can drop this thing with Flynn" is simply a non-starter. Impeachment requires a determination of 'high crimes and misdemeanours' by a two-thirds vote of the Senate. Not ever going to happen;
I venture to predict this will continue to be true after 2018.
Regarding the Trump issue; Regardless of what Trump may or may not have said, it sure looks to me like the whole thing is a desperate attempt on the part of the Democrat establishment to distract from the fact that they lost the election because they picked a lousier candidate and ran an dreadful campaign.
As for the meat of the article; as I recall (and I would be happy to be corrected) Martha Stewart was convicted not simply for lying, but for denying that she comitted a crime that government ultimately declind to try her for committing. In short, the government failed to prove she was lying because they failed to prove in court that what she said was untrue.
Have I missed something? Because if my understanding is correct, every government official connected with that should be keelhauled. Under an aircraft carrir.
Construing obstruction of justice from "I hope you can drop this thing with Flynn" then firing the chief investigator when he didn't is another matter though. Not to mention the multiple, contradictory reasons given for the firing.
That's actually a good point to remember… memos aren't tapes or transcripts. At best, the memos are Mr. Comey's not-quite-contemporaneous record of what he thought he heard President Trump say.
IIRC, it's even worse. It was an off-the-cuff statement she made while walking through the airport. It wasn't something made in an official interview or official form.
Dear Ben,
I am not American and have no dog in such partisan fights. I do believe that in any reasonable world, the firing of the FBI director should indeed matter; but the decision you can expect is not impeachment, nor even censure. This should not surprise. The working of the law is not guaranteed to yield justice – merely, if you are lucky, a decision. The law is not reasonable, in that sense.
One thing is clear to me: neither the Senate nor the House – nor even a court – will hold the FBI head's dismissal, even following Trump's clanging hint, to be an obstruction of justice, the multiple contradictions of Trump and his staff notwithstanding. The standard will be "beyond reasonable doubt", and Trump's accusers will not meet that high bar.
Comey himself stipulated that the President has the absolute right to fire the director of the FBI for any reason or no reason. Even Trump's own declaration that the Russia investigation was the root cause is capable of multiple interpretations. Not all of them are obstruction of justice. None of them are likely to be upheld as high crime by a two-thirds majority vote in the Senate.
OldCurmudgeon says June 21, 2017 at 9:31 am:
It's even worse. The government never proved that Martha Stewart had actually received "inside information". They only proved that her stockbroker had told his assistant to tell Stewart the "inside information".
The "inside information" was that the CEO of Imclone was selling off his shares in anticipation of a FDA disapproval of its product. That's the kind of "inside information" that flies around among stock brokers, traders and individual stock investors big and small, 24/7/365. Some is true. Some is not. It's a gigantic game of "telephone", where the story becomes increasingly garbled as it passes from party to party.
It's called speculation. It's what the stock market is built on. And the government never even proved that she heard that particular tale. They only proved that a broker told his assistant to tell her, that she sold her stock in Imclone before the Imclone CEO's sale became public information, and that she denied having sold her shares based on that information.
She was railroaded by ambitious prosecutors. If everyone who had sold part of their portfolio at the height of a bubble were prosecuted like she was, there would be very few individuals who would dare to own any stock. But prosecutors wanted to take down a popular icon, so they cooked up a case, pressured one of her stockbrokers, and flim-flammed a jury.
C. S. P. Schofield June 21, 2017 at 6:27 am is absolutely correct: "every government official connected with that should be keelhauled. Under an aircraft carrir." At least.
They never got Martha Stewart for Insider trading, they got her for lying to the FBI. Just like Ken's example, when they came around looking for evidence of insider trading she made a stupid mistake and talked to the FBI and lied about something trivial that didn't affect the investigation at all. Because of that they had her on a lying to the FBI and that's all they ever convicted her of.
Just like Ken's example, the FBI manufactured a crime to convict her of and never had enough evidence to get her for insider trading. I don't know how anyone could think that's a good thing. I know I'm appalled that the FBI excels at creating criminal actions from nothing, they've done it with all the convictions like Stewart and they've done it with all the "terrorists" they've caught where they manufactured the crime and scenario for someone that was incapable of doing this alone and lacked the motivation to do it themselves.
After eight years of "The Injustice Department" this weaponized form of government will need time and blood to get sorted out.
Must be nice to be so young that your memory of this long-standing, bi-partisan practice goes back only eight years.
"I shot the guy."
"Well, that's open to multiple interpretations."
"I shot him."
"What you could mean by that is…"
Is it hard to type when you're bent over and grabbing your ankles?
Dear Total,
As a student I had to sit in the High Court and listen to much more strained arguments which nonetheless won an acquittal. "I shot him" might mean murder, but does not rule out justifiable homicide.
"Reasonable" is not what the man on the Clapham omnibus thinks it is, as the Castile family could tell you.
I'm glad you got to see injustice in action. Doesn't mean the rest of us have to buy into the Stockholm syndrome.
You didn't answer my question about ankles and typing.
It's only difficult if you type with your toes. A chimpanzee might manage Shakespeare that way. Does one have sufficient ape in one's ancestry?
Or one could invoke my Outward Bound instructor, Bob Ulvang (an American) who while guiding us from one sound to the other over the mountains said: "There's a quicker way down but you don't have enough yoga for that."
So long as ankles are firmly grasped by armpits, I foresee no difficulty typing.
Nor would some juries I have known.
You tell me. Hard to hear over Trump having his way with you.
(*Sigh*) Gare au gori–ii–il–le.
Clearly you imagine me to be some sort of Trumpish troll. Silly conversation anyway. Hasta la nunca mas ver, baybee.
Make sure he leaves money on the dresser.
You know you're winning an argument when the other side starts hurling personal insults.
Although in this case, you're both doing it, so there are no winners. You're both losing. Let's not make Popehat just another internet forum; can we try to maintain some civility here?
Dear Ben,
Just which bit of my text did you interpret as a personal insult? Seriously.
Or you know that you've made such ridiculous assertions that there's no earthly way you're interested in the counter-case; you're just putting down a marker.
Someone asserting the earth is flat isn't likely to listen to a counterpoint. Someone asserting that Trump was just making random non-prescriptive comments when he used the word "hope" is so far beyond the limits of rationality that there's no discussion to be had. The correct response is either a horse-laugh or insults. I went with the latter.
Dear Ben,
See?
Please stop addressing your posts "dear Ben". You have lost the privelege of using that pleasantry towards me by your attempts at dragging me in to your petty flamewar.
You are both mistaken on so many levels it is difficult to know where to begin, but I shall attempt the challenge – and will strive to keep it brief.
Ben:
First, "Dear Ben" is not a pleasantry. It is a formal courtesy intended to identify the person addressed, one that was and remains a standard among certain people or in certain environments. Since you object, I will relax that.
Second, I did my best to keep from any personal insults – is that what you meant by flames? – whatsoever. If this is a flame war, it is singularly one-sided. You still have not identified a personal insult made by me. Frankly I am baffled by your remark.
Finally: Privilege is so spelled, by the way. Trivial I know, but on a law blog, since it stems from Latin for personal law, it might be worth the mention.
Dear Total,
Just to be clear, in the interest of putting a proper terminus to the conversation: nowhere did I assert 'that Trump was just making random non-prescriptive comments when he used the word "hope"'. Comey took his words as a direction, and so would I. My point is that the Senate, I guarantee, will not.
I do not actually disagree with you about what is right and proper political behaviour here, inasmuch as I am no sort of Trump enthusiast – although I have come to believe that your system has a collective wisdom no individual possesses. Trump might through no virtue of his own stimulate changes which, longer term, are good for your country.
That said, none of the presidential candidates were really satisfactory, simply because of their advanced age. Trump in particular I really think might be suffering from some kind of dementia. Pick's disease, perhaps, which my wife tells me I should be calling frontotemporal dementia. His vocabulary does come across as stunted when compared to videos made back in the early nineties (…not that I talk so good either, anymore).
From my perspective, contrary to what you assume, Trump might well, as Obama said, "put the republic at risk". Worse, while the US is not my republic, everyone's world is also at risk from the consequences of his presidency.
Preferable choices would include Hilary Clinton, for I simply do not believe those reports making her out to be some sort of witch (nor, I might add, does anyone outside the US). The mercurial Mr Sanders might have stirred up a stagnating system, but whatever his individual merits, electing Mr Sanders might just have touched off widespread civil disobedience; electing a woman would have set a desirable president precedent; and no sane non-American I know doubts that hers would have been a safe pair of hands.
Parenthetically, I'd say that at this stage of its history your republic needs a younger, more technically sophisticated and sane President, one who knows a tau protein from a tau neutrino from a town council. Vain hope, of course: a third of congresscritters are lawyers. Where are your engineers now? The last technically capable chief executive was Jimmy Carter. Poor man had to contend with a tontine of adverse events and became widely despised. At least he never started even one glorious little war. United statesians do seem allergic to any president smarter than the lowest common denominator. Absence of judgment leaves the US relying on evolution. Good luck. I mean that most sincerely.
Dear Richard–
You failed at your goal of keeping it short. I thus did not read it.
With best regards,
Total.
Dear Total:
How about this: To say that the current Senate will not impeach Trump is not an opinion. It is a prediction.
Trump fired Comey not quashing the rumor that hookers peed on him. Seriously, that's what Trump wanted when he asked for loyalty from Comey, killing this false rumor from a false dossier that was circulating through the press. Comey refused to even investigate the dossier, telling Trump that investigating it would give it some appearance of being true.
Occam's razor, Trump first and foremost is about protecting brand Trump(tm).