US Politics Mega-thread - Page 7812

On June 09 2017 02:11 Plansix wrote:

I asked last night, but is “corruptly persuade” one of the required prongs? Is the implied threat of losing his job not enough to meet the prong of “threatening”?

Because I believe Abramson left “corruptly persuade” out of his tweets specifically because we have zero evidence of bribery or quid pro quo. It just isn’t a factor and he is explaining law to the public.

On June 09 2017 02:14 xDaunt wrote:

If you look at the statute, it lists three or four forbidden acts. I forget all of them, but intimidation is one and "corruptly persuade" is another. My problem with Abramson's tweets is that he very clearly was arguing that Trump obstructed justice because he attempted to "persuade" Comey to drop the investigation. This is clearly a groundless argument. And to be clear, Abramson did not rely upon the other forbidden acts in the statute. He only relied upon the persuasion angle. This is why I took him to task.

On June 09 2017 02:21 Ragnarork wrote:


And we know exactly who fired Comey so it's even harder to make it look innocent.

On June 09 2017 02:14 xDaunt wrote:

If you look at the statute, it lists three or four forbidden acts. I forget all of them, but intimidation is one and "corruptly persuade" is another. My problem with Abramson's tweets is that he very clearly was arguing that Trump obstructed justice because he attempted to "persuade" Comey to drop the investigation. This is clearly a groundless argument. And to be clear, Abramson did not rely upon the other forbidden acts in the statute. He only relied upon the persuasion angle. This is why I took him to task.

On June 09 2017 02:21 Ragnarork wrote:


And we know exactly who fired Comey so it's even harder to make it look innocent.

On June 09 2017 02:19 Ragnarork wrote:


I actually read it and checked the actual text, so dunno what you're asking exactly. And I stand by my opinion.

(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

In 1992, then-President George H.W. Bush pardoned Caspar Weinberger and five other individuals who had been indicted or convicted in connection with the Iran-Contra arms deal. The special prosecutor, Lawrence Walsh, was furious, accusing Bush of stifling his ongoing investigation and suggesting that he may have done it to prevent Weinberger or the others from pointing the finger of blame at Bush himself. The New York Times also reported that the investigation might have pointed to Bush himself.

This is what Walsh said: "The Iran-contra cover-up, which has continued for more than six years, has now been completed with the pardon of Caspar Weinberger. We will make a full report on our findings to Congress and the public describing the details and extent of this cover-up."

Yet Bush was neither charged with obstruction of justice nor impeached. Nor have other presidents who interfered with ongoing investigations or prosecutions been charged with obstruction.

It is true that among the impeachment charges leveled against President Richard Nixon was one for obstructing justice, but Nixon committed the independent crime of instructing his aides to lie to the FBI, which is a violation of section 1001 of the federal criminal code.

It is against the background of this history and precedent that former FBI Director James Comey's opening statement to the Senate Intelligence Committee must be considered.

Comey himself acknowledged that: "throughout history, some presidents have decided that because ‘problems' come from Justice, they should try to hold the Department close. But blurring those boundaries ultimately makes the problems worse by undermining public trust in the institutions and their work." Comey has also acknowledged that the president had the constitutional authority to fire him for any or no cause.

President Trump also had the constitutional authority to order Comey to end the investigation of former national security adviser Mike Flynn. He could have pardoned Flynn, as Bush pardoned Weinberger, thus ending the Flynn investigation, as Bush ended the Iran-Contra investigation. What Trump could not do is what Nixon did: direct his aides to lie to the FBI, or commit other independent crimes. There is no evidence that Trump did that.

With these factors in mind, let's turn to the Comey statement.

Comey's written statement, which was released in advance of his Thursday testimony before the Senate Intelligence Committee, does not provide evidence that Trump committed obstruction of justice or any other crime. Indeed it strongly suggests that even under the broadest reasonable definition of obstruction, no such crime was committed.

The crucial conversation occurred in the Oval Office on Feb. 14 between the president and then-Director Comey. According to Comey's contemporaneous memo, the president expressed his opinion that retired Gen. Flynn "is a good guy."

Comey replied, "He is a good guy."

The president said, "I hope you can see your way clear to letting this thing go."

Comey understood that to be a reference only to the Flynn investigation and not "the broader investigation into Russia or possible links to the campaign." Comey had already told the president that "we were not investigating him personally."

Comey understood "the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December."

Comey did not say he would "let this go," and indeed he did not grant the president's request to do so. Nor did Comey report this conversation to the attorney general or any other prosecutor. He was troubled by what he regarded as a breach of recent traditions of FBI independence from the White House, though he recognized that "throughout history, some presidents have decided that because ‘problems' come from the Department of Justice, they should try to hold the Department close."

That is an understatement.

Throughout United States history — from Presidents Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama — presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.

It is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge. It would be far better if our constitution provided for prosecutors who were not part of the executive branch, which is under the direction of the president.

In Great Britain, Israel and other democracies that respect the rule of law, the director of public prosecution or the attorney general are law enforcement officials who, by law, are independent of the prime minister.

But our constitution makes the attorney general both the chief prosecutor and the chief political adviser to the president on matters of justice and law enforcement.

The president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.

Assume, for argument's sake, that Trump had said the following to Comey: "You are no longer authorized to investigate Flynn because I have decided to pardon him." Would that exercise of the president's constitutional power to pardon constitute a criminal obstruction of justice? Of course not. Presidents do that all the time.

Bush pardoned Caspar Weinberger, his secretary of defense, in the middle of an investigation that could have incriminated Bush. That was not an obstruction and neither would a pardon of Flynn have been a crime. A president cannot be charged with a crime for properly exercising his constitutional authority

[b]For the same reason, Trump cannot be charged with obstruction for firing Comey, which he had the constitutional authority to do.

The Comey statement suggests that one reason Trump fired him was because of his refusal or failure to publicly announce that the FBI was not investigating Trump personally. Trump "repeatedly" told Comey to "get that fact out," and he did not.

If that is true, it is certainly not an obstruction of justice.

Nor is it an obstruction of justice to ask for loyalty from the director of the FBI, who responded "you will get that [‘honest loyalty'] from me."

Comey understood that he and Trump may have understood that vague phrase "honest loyalty" differently. But no reasonable interpretation of those ambiguous words would give rise to a crime. Many Trump opponents were hoping that the Comey statement would provide smoking guns.

It has not.

Instead it has weakened an already weak case for obstruction of justice.

The statement may provide political ammunition to Trump opponents, but unless they are willing to stretch Comey's words and take Trump's out of context, and unless they are prepared to abandon important constitutional principles and civil liberties that protect us all, they should not be searching for ways to expand already elastic criminal statutes and shrink enduring constitutional safeguard in a dangerous and futile effort to criminalize political disagreements.

The first casualty of partisan efforts to "get" a political opponent — whether Republicans going after Clinton or Democrats going after Trump — is often civil liberties. Everyone who cares about the Constitution and civil liberties must join together to protest efforts to expand existing criminal law to get political opponents.

Today it's Trump. Yesterday it was Clinton. Tomorrow it could be you.

On June 09 2017 02:19 Gorsameth wrote:

No we cannot argue in good faith because what you suggest would mean that xDaunt admits that Trump obstructed justice and he cannot admit that his side did something wrong.

Do not underestimate the need for people to reinforce their world view and their inability to admit that it does not match reality.

On June 09 2017 02:20 KwarK wrote:

Given Trump subsequently did fire Comey I don't think we need to really worry about how implied the threat of firing him was. It's like the mafia extortion crew saying "sure, we said he needed fire insurance but that wasn't a threat" after the building was already mysteriously torched.

On June 09 2017 02:28 Plansix wrote:

You don't need to worry about that. But the lawyer trying to convince a jury that all the requirements for obstruction of justice are met totally does. Law is not math. You don't plug fact into a statute and get a result.

But again, the evidence is falling from the sky every day. And the case looks terrible for Trump right now. But no real trial attorney would say "Oh yeah, this is a slam dunk right now." Or that is what my attorney is saying.

On June 09 2017 02:26 xDaunt wrote:

Well, if you read the text, then I'm sure that you saw this:


EDIT: Sorry, I misunderstood what you were saying about the tweet length. Here's the problem with that explanation: Abramson didn't post a clarification anywhere else, and he clearly argues straight up persuasion throughout his tweet chain.



And here's the other thing that bothered me about this statute when I looked at it last night. We're focusing on the act, but the the statute itself only prohibits certain ends. In short, I don't even think that this statute really applies to this situation. Take a look at the following from Alan Dershowitz:


Source.

All of this goes to the point that I repeatedly stated since yesterday: by definition, can Trump do something illegal (and impeachable) if he is acting within his constitutional authority? Dersh's explanation is the best that I have seen yet.

On June 09 2017 02:30 KwarK wrote:

Sure, but everyone with two brain cells to rub together knows exactly what happened here. Even xDaunt is arguing that Trump is allowed to do what he did, not that he didn't do it.

The man is utterly and irredeemably corrupt.

On June 09 2017 02:32 LegalLord wrote:
We already all know that Trump is shitty and terrible. What we really want to know is if he is a crook, a factor for which legal arguments are what really matter.

On June 09 2017 02:32 LegalLord wrote:
We already all know that Trump is shitty and terrible. What we really want to know is if he is a crook, a factor for which legal arguments are what really matter.

On June 09 2017 02:32 LegalLord wrote:
We already all know that Trump is shitty and terrible. What we really want to know is if he is a crook, a factor for which legal arguments are what really matter.

On June 09 2017 02:31 Plansix wrote:
So basically abuse of power isn't a settled area of law at this point? Trump is within his authority, which means he did not expressly break the law. And no case has been brought for abuse of that authority. So we have no base line if it will prevail.