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Westlake Legal Group > Posts tagged "department"

“Patently deficient”: Federal judge blocks DOJ lawyers from withdrawing from case involving census citizenship question

Westlake Legal Group dt-1 “Patently deficient”: Federal judge blocks DOJ lawyers from withdrawing from case involving census citizenship question withdraw Trump The Blog question Justice furman doj department counsel Citizenship census

How much of a mess has the White House made of this census dispute? So much that the Justice Department lawyers who’ve been handling the case for months are now trying to walk away from it en masse…

…and the courts won’t let them. It’s a federal judge who’s insisting for the moment that Trump’s A-team at the DOJ remain on the job, arguing his side.

At least until they give him a good reason why they shouldn’t. Can they? From today’s order denying the lawyers’ motion to withdraw:

Westlake Legal Group c-1 “Patently deficient”: Federal judge blocks DOJ lawyers from withdrawing from case involving census citizenship question withdraw Trump The Blog question Justice furman doj department counsel Citizenship census

Let’s back up. The DOJ initially convinced SCOTUS to take up the question of whether a citizenship question could be placed on the census in part by noting that time was of the essence. The census, supposedly, had to be at the printers by June 30. The Supreme Court agreed to hear the case and issued its verdict two weeks ago: Although the executive has power to add questions to the census, wrote John Roberts, it’s … pretty obvious that they’ve been lying about why they want the citizenship question added to it. The public needs clarity on that and the administration’s stated reasoning, that they need citizenship info to enforce the Voting Rights Act, simply isn’t supported by the evidence.

So the White House was thwarted unless and until it could provide a more credible explanation for wanting the citizenship question included — but since the deadline for printing the census was almost here, it seemed like there’d be no time to reconsider the matter. And so, inevitably, the DOJ announced on July 2 that the citizenship question would be dropped. Then Trump got to talking to his friends, who urged him to fight on, and he declared the next day — in a tweet — that the question wouldn’t be dropped after all, that the DOJ would fight on. And what about the June 30 deadline? Well, maybe the deadline wasn’t such a hard and fast deadline after all. Even though believing that it was helped convince SCOTUS to hear this appeal.

A federal judge in Maryland held a phone conference with the DOJ’s lawyers on July 3, after Trump’s tweet, to try to get a straight answer as to whether they were dropping the case or fighting on. The lawyers seemed as confused as the judge by the state of play:

Westlake Legal Group 1-1 “Patently deficient”: Federal judge blocks DOJ lawyers from withdrawing from case involving census citizenship question withdraw Trump The Blog question Justice furman doj department counsel Citizenship census   Westlake Legal Group 2-1 “Patently deficient”: Federal judge blocks DOJ lawyers from withdrawing from case involving census citizenship question withdraw Trump The Blog question Justice furman doj department counsel Citizenship census

All they had was a tweet. “This is a very fluid situation,” said Gardner later in the call, with no small amount of understatement. A source told the WSJ that “Nobody has any f***ing idea” what Trump wanted them to do.

Then came the next newsflash this past Sunday: The entire team of DOJ lawyers working on this case was planning to withdraw from it, a move which the NYT described as “all but unprecedented in legal battles.” Even stranger, the DOJ offered no explanation for the change. They didn’t offer one to the court either, per today’s order. You can’t just walk away without a good reason, said the judge, especially when you’ve spent months insisting that there’s a deadline here and time is of the essence in resolving the matter.

Why would the entire “federal programs” seek to drop the case like a hot potato? Maybe, said the Times, it’s because they feel the administration’s told so many lies — about its reasoning for wanting the question on the census, about the supposedly hard-and-fast deadline for the census, etc — that it’d be unethical for them to continue. That is, maybe they believe there’s no way to go forward here without either lying to the court or admitting that previous representations to the court were lies.

[The motion to withdraw] strongly suggested that the department’s career lawyers had decided to quit a case that at the least seemed to lack a legal basis, and at most left them defending statements that could well turn out to be untrue.

“There is no reason they would be taken off that case unless they saw what was coming down the road and said, ‘I won’t sign my name to that,’” Justin Levitt, a former senior official in the Justice Department under President Barack Obama, said on Sunday…

Lawyers who had been working on the case apparently concluded that they faced three problems. They had told the Supreme Court that they were up against a strict deadline of June 30 for printing the census forms, and there were difficulties in finding a new justification for the question that would not seem invented out of whole cloth. They may have also concluded that there was no way to move speedily enough to restore the question in any event, given that constitutional and statutory frameworks seem to require a lengthy administrative process before new questions may be added to the census.

If they objected to continuing on with the case due to ethical reasons, it makes sense that they wouldn’t want to state that in their motion to withdraw and risk embarrassing Trump and the department. But the federal judge who issued today’s order has called their bluff. Either they have to get back to work or they have to openly admit their ethical misgivings about what they’re being asked to do, which will be an unholy PR clusterfark for the White House and the DOJ. What are they going to do?

To give you a sense of just how messy this has gotten, read this story about the many times federal officials have contradicted their own stated reasoning for wanting to add the citizenship question to the census. Remember, it’s supposed to be about the Voting Rights Act, but figures like Ken Cuccinelli have admitted at times that the information might be used in immigration enforcement. And Trump himself admitted just a few days ago that it might be used for redistricting, perhaps to try to exclude illegals from the count in apportioning House districts. My takeaway from John Roberts’s opinion in the SCOTUS ruling was that he was straining for ways to give Trump the green light to do this but, as a matter of basic judicial integrity, couldn’t allow the administration to lie baldfaced to the Court about what its motives were. Now you have the president all but confessing that the Voting Rights Act rationale wasn’t the real reason for asking about citizenship on the census. If this case comes back to SCOTUS, Roberts may feel obliged to rule against Trump purely because it would embarrass the Court at this point to reward the administration with a win after lying so brazenly.

Trump may “win” anyway, though, if not in court than by making enough of a fuss about this that some illegals will refuse to answer the census questionnaire, leading to an undercount of the population in blue districts with large illegal populations. He might still win in court too, with POTUS reportedly considering an executive order to include the question on the census and begin printing. Again, though, that would operate as a sort of middle finger to SCOTUS, ignoring Roberts’s demand for a clearer rationale for including the question and ordering the government to proceed with it anyway on Trump’s say-so. If SCOTUS tries to stop him, then we’re in constitutional crisis territory. But first, we wait to see what the DOJ will do about today’s “get back to work” order.

The post “Patently deficient”: Federal judge blocks DOJ lawyers from withdrawing from case involving census citizenship question appeared first on Hot Air.

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Andrew Napolitano: Mueller didn’t try to indict Trump because he knew Barr would never let him do so

Westlake Legal Group an-1 Andrew Napolitano: Mueller didn’t try to indict Trump because he knew Barr would never let him do so Trump The Blog prosecution obstruction Justice indictment doj department bill barr Andrew Napolitano

Does this explain Mueller’s mystifying punt on obstruction? Surely he read the strange unsolicited memo that Barr sent to Rod Rosenstein last year, arguing at length that the president can’t be charged with obstruction when he’s exercising a lawful power granted to him by the Constitution (e.g., firing the director of the FBI). He must have realized that Barr would have overruled him had he tried to indict Trump on those grounds. And he may have feared that Barr also would have overruled him if he tried to indict Trump on other grounds, like witness-tampering, possibly on the theory that the only tribunal constitutionally empowered to officially accuse the president of a crime is the House of Representatives.

Faced with the prospect of a sensational, wrenching public clash with the new AG over the outcome of the Russia investigation, maybe Mueller balked. He’s an institutionalist, after all. He led the FBI for more than a decade and worked for the DOJ in different capacities off and on for years before that. He maintained a stony silence throughout the process in the apparent belief that prosecutors are supposed to speak only through the facts they’ve gathered. If it came out that he had recommended indicting the president and that Barr had thwarted him, whatever’s left of the DOJ’s reputation as an institution that stands apart from politics would have been incinerated. And it would have been to no avail on Mueller’s end: Barr’s the boss, so his view would have carried the day.

But what about Barr’s own suggestion from yesterday, that Mueller could have accused Trump of a crime without indicting him? Would Barr have let Mueller get away with that if Mueller had tried it? Not everyone thinks so:

Either way, it may be that Mueller figured his best shot at getting Barr to be transparent with the report was to refrain from accusing Trump of anything. Simply state the evidence and withhold judgment on whether Trump’s actions amounted to obstruction. If Barr ended up stepping in and ruling that Trump wouldn’t be charged, that’s fine from Mueller’s standpoint. The report was designed to persuade Congress and the public that Trump obstructed justice, I think, not the Attorney General or the DOJ. By taking the path of least resistance on obstruction, Mueller may have achieved his goal of making sure that members of Congress got to see (most of) his work.

By the way, here’s an interesting catch by anti-Trumper Benjamin Wittes. Barr was asked by CBS about his summary of Mueller’s report and said this:

Asked about the fundamental difference between his and Mueller’s views on what the evidence gathered during the Russia probe means, Barr said, “I think Bob said he was not going to engage in the analysis. He was not going to make a determination one way or the other. We analyzed the law and the facts and a group of us spent a lot of time doing that and determined that both as a matter of law, many of the instances would not amount to obstruction.”

“As a matter of law?” Crawford asked.

“As a matter of law. In other words we didn’t agree with the legal analysis, a lot of the legal analysis in the report. It did not reflect the views of the department,” Barr said. “It was the views of a particular lawyer or lawyers and so we applied what we thought was the right law.”

That’s not what Barr said last month, notes Wittes. He claimed at the time that he applied Mueller’s view of the law in analyzing obstruction, not his own:

Maybe Mueller punted on obstruction because he suspected Barr … just wasn’t going to be a square-dealer when it came to accusing the president. If the deck was stacked against Mueller, the only thing to do was to appease Barr by declining to accuse Trump of anything and focus instead on making sure that the report itself was made public. Mission accomplished.

The post Andrew Napolitano: Mueller didn’t try to indict Trump because he knew Barr would never let him do so appeared first on Hot Air.

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Comey: Trump’s “frustration” over the Russia probe doesn’t let him off the hook for obstruction

Westlake Legal Group comey-trumps-frustration-over-the-russia-probe-doesnt-let-him-off-the-hook-for-obstruction Comey: Trump’s “frustration” over the Russia probe doesn’t let him off the hook for obstruction Trump The Blog report obstruction mueller motive Justice intent frustration Federal Bureau of Investigation department corrupt comey CBS barr

Westlake Legal Group j Comey: Trump’s “frustration” over the Russia probe doesn’t let him off the hook for obstruction Trump The Blog report obstruction mueller motive Justice intent frustration Federal Bureau of Investigation department corrupt comey CBS barr

Yeah, Bill Barr’s argument on this point left me scratching my head last week and I’m still scratching it now. He told Dianne Feinstein during his latest Senate testimony that one reason he didn’t think Trump had obstructed justice is because obstruction under the law requires evidence of “corrupt intent.” If the president knew he was innocent of collusion, Barr reasoned, and sincerely felt persecuted for partisan political reasons then would it really have been “corrupt” for him to try to fire Bob Mueller and end the Russiagate probe? He was frustrated (and remains frustrated) that the investigation left him under a cloud politically for two years. He wasn’t trying to prevent Mueller from indicting him. Ending an inquiry which he had every reason to believe *wouldn’t* lead to him being accused of an underlying crime isn’t “corrupt.”

But if you take that logic seriously, it should mean that no one who’s falsely accused of a crime can be convicted of obstruction. If the local U.S. Attorney starts investigating you for terrorism and you know you’re innocent, why shouldn’t you plant fabricated evidence or lie under oath to steer him away from suspicion of you? You have every right to be frustrated that he’s interrupted your life and placed a cloud over you when you know you haven’t done anything wrong. Witch hunt!

Of course you can commit obstruction even if you’ve committed no other crime and even if you acted out of “frustration.” The obstruction statute is there to deter people from deliberately impeding or corrupting federal investigations whether or not they’re at risk of being charged. We want to know when the DOJ finishes up with a probe that the probe wasn’t rigged somehow by outside sources. What makes Barr’s defense of Trump extra strange is that, while Trump might have been confident from the start that he personally wouldn’t be indicted, he was in the dark about which members of his inner circle might be. His son was in criminal jeopardy for months; his pal Mike Flynn was in such deep trouble that Trump had a word with Comey about it. By limiting the question of “corrupt intent” to whether Trump was trying to protect *himself* from being indicted, Barr glossed over the president’s anxiety about the people around him.

He’d have been better off making the strong-form argument that Alan Dershowitz made about this: If the president has the power under the Constitution to end an investigation or fire Mueller, then by definition his actions can’t be obstruction regardless of whether his motive was corrupt. They’re lawful, period. That’s an unsatisfying explanation since it would mean that the president enjoys certain powers to impede an investigation in which either he or his close associates are implicated that the average citizen doesn’t enjoy, but, well, he does. Just like Congress has certain powers to remove the president from office that the average citizen doesn’t enjoy.

Exit quotation: “Republicans need to breathe into a paper bag. If we had confronted the same facts with a different candidate, say a Democrat candidate, where one of their advisers was talking to a foreign adversary’s representative, about that adversary’s interference in our election, they would be screaming for the FBI to investigate and that’s all we did.”

The post Comey: Trump’s “frustration” over the Russia probe doesn’t let him off the hook for obstruction appeared first on Hot Air.

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Dem Rep. Steve Cohen: We need to send the sergeant-at-arms to arrest Bill Barr if he won’t come testify voluntarily

Westlake Legal Group sc Dem Rep. Steve Cohen: We need to send the sergeant-at-arms to arrest Bill Barr if he won’t come testify voluntarily Trump The Blog testify steve cohen sergeant at arms Justice jail inherent contempt doj department Congress barr attorney general

This is the guy who was eating KFC at Thursday’s committee hearing to mock Barr’s decision not to appear, in case you’re wondering how seriously he’s taking this.

My gut says the odds of Jerry Nadler sending officers to arrest the Attorney General for refusing to testify are absolute zero, but we must bear in mind that we live in a simulation now in which American politics has become a hallucinatory reality-show carnival. And let’s face it, Congress throwing the AG into a dungeon would be a pretty sweet episode of reality television.

Cohen refers in the clip to the House’s inherent power of contempt. Normally when someone is held in contempt of Congress the matter is referred to the Justice Department for prosecution, but that poses a problem when the person cited for contempt happens to lead the Justice Department. The last time it happened, the Obama administration tore up Congress’s referral and declined to prosecute Eric Holder, claiming that the documents the House was demanding from him were protected by executive privilege. I don’t know what grounds the Trump White House would use to decline to prosecute Barr but they’d find somethin’. If all else failed, Trump could simply pardon Barr. So what can Congress do when the DOJ isn’t willing to enforce its contempt citations?

Well, it can handle the matter itself. It hasn’t happened in many, many years but if you’re held in contempt Congress has the authority to send its “police” to your door, haul you in to testify, and toss you in the D.C. jail if you refuse. This short but nifty WaPo article from 2007 runs down the modern history of “inherent contempt.” Courts have sided repeatedly with the legislature’s power to do this. And so long as Congress is acting on its own, in a matter involving civil rather than criminal contempt, the president *doesn’t* have the power to pardon.

The limitation on the president’s pardon power was most comprehensively discussed in a 1925 opinion by Chief Justice (and former president) William Howard Taft in the case of Ex Parte Grossman.

Grossman had been accused during Prohibition of the illegal sale of liquor and was enjoined by a federal court from further sale of alcoholic beverages. When he violated the order, he was accused of contempt and sentenced to prison — and then pardoned by the president…

In an analysis of the pardon power that [Chief Justice] Taft traced back through English parliamentary history, the opinion concluded that the power did reach contempts — but only criminal contempts, the purpose of which is to vindicate offenses against the dignity of public authority.

Civil contempt, in which someone is held temporarily to force them to comply with a legal proceeding, isn’t an “offense against the United States” and so the president’s authority doesn’t reach it. Nine years after the Grossman case, in an opinion by Louis Brandeis, the Supreme Court upheld the Senate’s power to take someone into custody pursuant to a contempt charge and denied the prisoner’s writ of habeas corpus.

So, yeah, they could arrest Barr.

But they’re not going to. Barr’s testimony isn’t worth so much to Nadler that it’d be worth reviving a weird draconian practice that would make the poisoned relationship between the two parties that much more poisonous. (McConnell would come under immediate pressure from the right to call some liberal to testify and then lock him up if he refused. Tit for tat!) Especially not when the public already got to hear from Barr last week at length in the Senate. If an outlet as friendly to Democrats on Russiagate as CNN is as incredulous as Anderson Cooper is here, you can imagine how the rest of the public would receive an attempt to arrest Barr. Remember, Pelosi’s whole strategy towards Trump ahead of 2020 is not to take any drastic action that might inflame Republicans and make swing voters more favorable to him. She came out against impeachment even before Mueller issued his verdict on collusion knowing how risky politically trying to remove Trump might be. She’s not now going to turn around and pull the pin on a political grenade by having Bill Barr arrested.

This is a good niche for Cohen, though. There’s no downside to playing the “progressive firebrand” role on TV knowing that the hardball tactics you recommend won’t be implemented and therefore can’t possibly backfire on you. Righty populists have dined out on that dynamic for years too. All Cohen’s really doing here is fundraising for his next campaign.

The post Dem Rep. Steve Cohen: We need to send the sergeant-at-arms to arrest Bill Barr if he won’t come testify voluntarily appeared first on Hot Air.

Westlake Legal Group sc-300x159 Dem Rep. Steve Cohen: We need to send the sergeant-at-arms to arrest Bill Barr if he won’t come testify voluntarily Trump The Blog testify steve cohen sergeant at arms Justice jail inherent contempt doj department Congress barr attorney general   Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Harris to Barr: Has anyone at the White House asked you to open an investigation on someone?

Westlake Legal Group harris-to-barr-has-anyone-at-the-white-house-asked-you-to-open-an-investigation-on-someone Harris to Barr: Has anyone at the White House asked you to open an investigation on someone? white house Trump The Blog Justice investigation Hillary Clinton harris doj department barr

Westlake Legal Group bb Harris to Barr: Has anyone at the White House asked you to open an investigation on someone? white house Trump The Blog Justice investigation Hillary Clinton harris doj department barr

Normally the answer to a question like this by the Attorney General is a simple “Of course not and I’m offended on the president’s behalf that you’d ask. The DOJ isn’t a political weapon for the White House.” Barr ends up having to resort to a Clintonism to wriggle out of it: Clearly some unnamed person (ahem) has raised the idea with him of siccing the DOJ on some other unnamed person but it seems the idea wasn’t pressed so insistently that Barr would say it amounted to a “suggestion.”

Which reminds me of Trump’s conversation with James Comey about Mike Flynn. “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go,” Trump allegedly said at the time, according to Comey. Was that a “suggestion”? Absolutely, Comey would say. Barr, clearly much more favorably disposed to Trump, might answer, “Well, he never explicitly *asked* Comey to let Flynn go.”

There’s no mystery as to whom Harris has in mind:

The Daily Beast reported in March that, less than a month after those tweets were sent, Jeff Sessions sent a letter to the U.S. Attorney in Utah asking him to review the DOJ’s handling of the Clinton Foundation and Uranium One matters. (Sessions’s office initially denied that any such letter existed.) Just a few weeks ago Trump reiterated his interest in seeing Hillary and other Obama officials linked to Russiagate investigated in an interview with Fox Business:

“So when I won, I made my opening speech, everyone’s shouting, ‘Lock her up! Lock her up! Lock her up!’ I said, ‘No, no, no, let’s forget her. Let’s get on to the future,’” the president recalled Friday. “But they have treated me so viciously, and they have treated me so badly and we did nothing wrong — you look at the others — and all of these people you hear about, that had nothing to do with Russia, Russia collusion, nothing.”…

“I think — look, I have a lot of respect for him,” Trump said of Barr. “I’ve never known him. He’s a very, very smart, respected man. Hopefully he’ll do what’s fair. … All I can ask is what’s fair.”

The fact that he’s taken to saying stuff like this in public is nothing new. Mueller’s report notes in the obstruction section that one of the confounding problems in analyzing Trump’s “corrupt intent” is his penchant for blurting things out in front of cameras. A famous example was him admitting to Lester Holt that he fired Comey partially because of “this Russia thing.” If he’s egging on Barr to investigate Clinton and the Obama natsec team in full public view, what would a word to him about it behind closed doors amount to? (“Gee, it’d be great if Crooked was indicted!”) Barr would have his marching orders even if his only interactions with Trump involved reading his Twitter feed. Whether he chooses to follow them is up to him.

His handling of the Mueller report has made him Democrats’ hate object du jour so here’s the Q&A with Harris followed by Harris insisting that he resign. Every candidate in the Democratic field will agree with her assuming they haven’t already.

The post Harris to Barr: Has anyone at the White House asked you to open an investigation on someone? appeared first on Hot Air.

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Hillary: Anyone else would have been indicted for obstruction if they did what Trump did

Westlake Legal Group hillary-anyone-else-would-have-been-indicted-for-obstruction-if-they-did-what-trump-did Hillary: Anyone else would have been indicted for obstruction if they did what Trump did The Blog report obstruction mueller Justice indicted Hillary Clinton donald trump doj department

Westlake Legal Group hc-2 Hillary: Anyone else would have been indicted for obstruction if they did what Trump did The Blog report obstruction mueller Justice indicted Hillary Clinton donald trump doj department

Ironic, since others have made the same point about her mishandling of classified information — even in court, as part of their legal defense to the same charge. The most famous example, Kristian Saucier, received a pardon from Trump because of it.

I’m surprised to find Hillary adding to the pressure here on Pelosi and the House leadership to impeach. Right, granted, she hates Trump, but Pelosi has sound strategic reasons for not wanting to initiate a process that can only lead to failure in the Republican Senate and turnout fuel for Republican voters. The way you kick Trump out of office is to keep Russiagate at a simmer, not a boil, hot enough so that it damages Trump next fall but not so hot that Trump’s base is agitated by it. That’s what Pelosi, Nadler, Schiff et al. are trying to do by launching a thousand investigations but downplaying the prospects of impeachment. Now here’s Hillary nudging them to go nuclear. Her electoral instincts are foolproof.

In all honesty, I read the key part of Mueller’s report on obstruction the same way she did. I wouldn’t say it “very directly” referred the matter to Congress, as she does, but indirectly? Sure.

Westlake Legal Group mr Hillary: Anyone else would have been indicted for obstruction if they did what Trump did The Blog report obstruction mueller Justice indicted Hillary Clinton donald trump doj department

Before the report was issued it seemed like Mueller would come to one of two possible conclusions, that probable cause does or doesn’t exist based on the evidence to believe that Trump obstructed justice. Actually indicting Trump seemed out of the question due to DOJ policy that sitting president can’t be indicted, but surely Mueller could state his considered judgment that an indictment should issue under circumstances like these. That would be Congress’s cue to take the baton and begin impeachment proceedings. And Mueller didn’t do that. Total exoneration!

But no, what he’s telling us in the above passage is that, for reasons of basic fairness, the DOJ policy preventing indictment of the president also precludes Mueller from stating his opinion if he believed obstruction occurred. If he were to accuse Trump of that, it would leave the president with no legal avenue to answer the charge: Since there’s no indictment, there’s no trial and thus no opportunity for Trump to mount a defense. A sealed indictment wouldn’t work either since it would doubtless leak, casting a shadow over Trump’s presidency with, again, no chance to clear his name until he was out of office, years in the future. Imagine if Mueller indicted Trump under seal, the indictment was exposed, the resulting political damage led to Trump losing the election, and then Trump was acquitted in court. Mueller’s accusation would have changed the course of American history — in a case which, it turned out, couldn’t even support a conviction. Grossly unfair.

The only thing for him to do was to lay out the evidence he’d gathered and scrupulously withhold his opinion on Trump’s guilt … except to say that his silence shouldn’t be interpreted as exoneration. His position, essentially, is that it’d be unfair to the accused to say that probable cause exists but unfair to the facts to say it doesn’t not exist, wink wink. That does sound like an impeachment referral to Congress rather than a punt to Bill Barr to decide the question. After all, if Mueller thought it was appropriate for the attorney general to declare that Trump didn’t obstruct justice, he could have and presumably would have said it in the report himself. He didn’t, and made a point of saying that he wasn’t doing that.

But Barr did choose to decide the question and that’s had an impact by souring the public on impeachment (ironically to the relief of House Democrats). It’d be fascinating if Mueller were called to testify before the House and confirmed that his convoluted finding on obstruction was aimed at having Congress decide the matter rather than Barr, but it’s hard to imagine that. A by-the-book character like Mueller will probably take the view that Barr is in charge and he’s merely a subordinate. If Barr thought the right thing to do was to issue a verdict on obstruction by the president instead of leaving it to Congress then that’s within his discretion as AG, case closed.

The post Hillary: Anyone else would have been indicted for obstruction if they did what Trump did appeared first on Hot Air.

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Comey on Barr’s comments: I’ve never thought of court-ordered surveillance by the FBI as “spying”

Westlake Legal Group comey-on-barrs-comments-ive-never-thought-of-court-ordered-surveillance-by-the-fbi-as-spying Comey on Barr’s comments: I’ve never thought of court-ordered surveillance by the FBI as “spying” The Blog surveillance russiagate Russia ordered Justice doj department court comey barr

Westlake Legal Group jc Comey on Barr’s comments: I’ve never thought of court-ordered surveillance by the FBI as “spying” The Blog surveillance russiagate Russia ordered Justice doj department court comey barr

People are dragging him for this because (a) dragging Comey has become one of America’s most enjoyable (and bipartisan) political pastimes and (b) it’s almost self-parody that a former FBI director wouldn’t regard his own agency’s surveillance tactics as “spying.” Spying is what the bad guys do, see. Go figure that a successor to J. Edgar Hoover is more sanguine about his own outfit’s intrusions into people’s privacy.

But he has a point about the weirdness of Barr’s testimony a few days ago. The term “spying” does come loaded with certain assumptions, foremost that the surveillance to which it refers is unlawful. Espionage is a crime punishable by death, after all. To accuse the feds of “spying,” as Barr did, was to imply that the investigation into Team Trump’s connections with Russia was illicit — which was strange because in the same breath Barr made a point of saying that he had no reason to believe that.

I think spying did occur. But the question is whether it was predicated — adequately predicated,” Barr testified. “I’m not suggesting it wasn’t adequately predicated, but I need to explore that. I think it’s my obligation. Congress is usually very concerned about intelligence agencies and law enforcement agencies staying in their proper lane.”

“I think spying on a political campaign is a big deal. It’s a big deal,” Barr added, an apparent reference to GOP allegations that the FBI misled the Foreign Intelligence Surveillance Court to monitor former Trump 2016 campaign foreign policy adviser Carter Page.

However, later in the hearing, Barr clarified he hasn’t proven there was any wrongdoing. “I am not saying that improper surveillance occurred, I’m saying that I am concerned about it and looking into it, that’s all,” he said.

The Russiagate probe was improper, he suggests, before scrambling to make clear that he has no firm reason to believe that. No wonder Russiagate true believers thought he was pandering to his boss there, trying to casually delegitimize the investigation while covering his ass by clarifying that he wasn’t doing that. “A person who has discussed the matter with Mr. Barr said that he did not mean to imply that the [surveillance] measures had been improper,” notes the Times, but that’s hard to believe given his emphasis during testimony that “spying” on the campaign was a “big deal.” Clearly he meant to insinuate that misconduct had occurred. And then he chickened out.

Maybe he knows what the IG’s investigation has uncovered about of Russiagate’s origins and isn’t prepared to talk about it yet. Ed was right to note earlier how surprising it is in hindsight that the feds had enough on Carter Page to get a FISA warrant but ultimately not enough to indict him for anything. Between that and the many dubious elements of the Steele dossier, Barr can make a case that the probe was, if not quite unlawful, at least ill-advised and poorly founded. Although you know what Comey will say: The reason we have FISA (in theory at least) is to empower the judiciary to prevent the feds from launching ill-advised, poorly founded counterintelligence investigations. In this case a FISA judge reviewed the FBI’s application and signed off on a warrant. If Barr wants to blow up Russiagate retroactively, it won’t be enough to nuke Comey and Strzok and even Rod Rosenstein, who approved applications for surveillance. He’ll need to nuke the judgment of the FISA court, too.

And he’ll need to contend with this point:

Comey’s point at its most basic is that we allow police to conduct surveillance with court oversight because sometimes there really are bad guys — spies, even — who need to be stopped. That’s what he claims happened with Russiagate. Barr seems to think, although he won’t clearly say so, that this was more of a partisan operation by Obama’s administration to keep tabs on Trump’s campaign. That’s the difference between “surveillance” and “spying.” We’ll see what the IG says.

The post Comey on Barr’s comments: I’ve never thought of court-ordered surveillance by the FBI as “spying” appeared first on Hot Air.

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