Attorney General

Judge Brett Kavanaugh on Independent Counsels (Part 1)

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There has been a lot of commentary about Judge Brett Kavanaugh’s law review articles on the investigation, indictment and prosecution of a president, but I believe you should see selected excerpts from his writings for yourself.

Here is a link to his 1998 article in the Georgetown Law Journal. THE PRESIDENT AND THE INDEPENDENT COUNSEL, 86 Geo. L.J. 2133, Copyright (c) 1998 by the Georgetown Law Journal Association; Brett M. Kavanaugh (selected excerpts):

The conflicts of interest under which the Attorney General labors in the investigation and prosecution of executive branch officials, particularly high-level executive branch officials, historically have necessitated a statutory mechanism for the appointment of some kind of outside prosecutor for certain sensitive investigations and cases. As the Watergate Special Prosecution Task Force stated in its report, “the Justice Department has difficulty investigating and prosecuting high officials,” and “an independent prosecutor is freer to act according to politically neutral principles of fairness and justice.” This article agrees that some mechanism for the appointment of an outside prosecutor is necessary in some cases.

Kavanaugh makes six proposals to amend the independent counsel statute. The independent counsel statute was allowed to expire on June 30, 1999. Kavanaugh’s recommendations were ignored and were never enacted.

Whether the Constitution allows indictment of a sitting President is debatable (thus, Congress would not have the authority to establish definitively that a sitting President is subject to indictment). Removing that uncertainty by providing that the President is not subject to indictment would expedite investigations in which the President is involved (Watergate, Iran-Contra, and Whitewater) and would ensure that the ultimate judgment on the President’s conduct (inevitably wrapped up in its political effects) is made where all great national political judgments ultimately must be made—in the Congress of the United States. [Inferring by Impeachment.]

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Federal courts deliver a pounding to the Trump administration’s immigration policies (updated)

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At the end of June, Health and Human Services Secretary Alex Azar, who has jurisdiction over the child immigrants being separated from their parents and held in detention centers, testified before the Senate Finance Committee that he can find separated migrant kids ‘within seconds’:

Health and Human Services Secretary Alex Azar said Tuesday he could find any child separated from their migrant parents “within seconds.”

“There is no reason why any parent would not know where their child is located,” Azar told the Senate Finance Committee. “I could at the stroke of keystrokes … within seconds could find any child within our care for any parent.”

Azar pushed back on reports that parents and children forcibly separated at the Mexican border under President Trump’s “zero tolerance” policy can’t find each other. He said that by using his computer “portal” through the Office of Refugee Resettlement, he could easily locate the kids.

Azar’s testimony was under oath. The Senate must now consider charging him with perjury or lying to Congress.

Late last week, U.S. District Judge Dana Sabraw in Ms. L v. ICE, Case No.: 18cv0428 DMS (MDD), U.S. District Court Southern District of California, denied the Trump administration’s request to extend the deadline to reunite families that had been separated at the border — not so simple as “the stroke of keystrokes … within seconds could find any child within our care for any parent,” is it? Judge insists timeline be met to reunite children at border:

A judge insisted on Friday the Trump administration stick to a deadline to reunite children separated from their parents at the border, instead acknowledging that more time may be justified only in specific cases.

U.S. District Judge Dana Sabraw ordered the administration to share a list of the 101 children with the American Civil Liberties Union, which successfully sued to force the reunions, by Saturday afternoon. The two sides will try to determine over the weekend which cases merit a delay in an effort to present a unified front in court on Monday morning.

“The government must reunite them,” the judge said. “It must comply with the time frame unless there is an articulable reason.”

The administration said it needed more time to reunite 101 children under 5 years old to ensure the children’s safety and to confirm their parental relationships.

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GOP collaborators in Congress aid and abet Trump’s obstruction of justice in the Russia investigation

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While the news media was fixated on yet another mass shooting yesterday (“If it bleeds it leads“),  a more significant act of terrorism was occurring just miles away in the House Judiciary Committee, where Trumpkins in the ironically named House GOP Freedom Caucus (they are actually authoritarians who want an autocracy), were collaborating with the Trump legal defense team to defame the Department of Justice and the FBI, and aiding and abetting  Trump’s conspiracy to obstruct justice in the Russia investigation.

These authoritarian Trumpkins are requesting to see the prosecutor’s evidence in an active ongoing criminal investigation of  the president and his associates, information they are not entitled to receive in the oversight function, so they can then turn that evidence over to Trump’s legal team and to selectively leak it to the GOPropagandists at FAUX News aka “Trump TV,” as they have already done with information the DOJ has previously inappropriately turned over to the committee under unprecedented threats from these authoritarian Trumpkins.

If the DOJ appropriately and lawfully refuses to turn over prosecutorial evidence in response to this improper subpoena, these authoritarian Trumpkins have set in motion a scenario in which Rod Rosenstein can be removed as Deputy AG, to allow Trump to appoint a loyalist stooge as Deputy AG, who will then terminate the Special Counsel’s Russia investigation.

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Dirty trickster Roger Stone concocts a new conspiracy theory for Dear Leader

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The thing about conspiracy theorists is that when their conspiracy theory is debunked, they never concede “Sorry, my bad. I was wrong.” No, they just alter their conspiracy theory and keep it alive.

A few weeks ago Donald Trump and his GOPropagandists at FAUX News aka Trump TV, in particular Trump’s Minister of Propaganda Sean Hannity, were pushing the “Spygate” conspiracy theory, asserting than an FBI informant was embedded as a “spy” in the Trump campaign.

This manufactured conspiracy theory quickly fell apart when Rep. Trey Gowdy, himself the purveyor of the “Benghazi!” conspiracy theory, went on Trump TV and dismissed President Trump’s ridiculous claim that his campaign was spied on by the FBI in 2016. Trey Gowdy rejects Trump’s Spygate theory. “I am even more convinced that the FBI did exactly what my fellow citizens would want them to do when they got the information they got,” Gowdy told Trump TV.

House Speaker Paul Ryan said later that House Oversight Committee Chairman Trey Gowdy was “accurate” when he argued the FBI has acted appropriately in its ongoing probe of potential Russian links to the Trump campaign. House Speaker Paul Ryan sides with Trey Gowdy over Trump on ‘Spygate’.

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DOJ Inspector General finds fault, but no political bias in FBI investigations

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The long-anticipated Department of Justice Inspector General Report, “A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election,” was released today. DOJ OIG Press Release (.pdf), and Full Report (download).

The New York Times reports, Comey Cited as ‘Insubordinate,’ but Report Finds No Bias in F.B.I. Decision to Clear Clinton:

The former F.B.I. director James B. Comey was “insubordinate” in his handling of the investigation of Hillary Clinton during the 2016 presidential election, a critical Justice Department report concluded on Thursday.

But the report, by the department’s inspector general, Michael E. Horowitz, does not challenge the decision not to prosecute Mrs. Clinton. Nor does it conclude that political bias at the F.B.I. influenced that decision, the officials said.

“We found no evidence that the conclusions by department prosecutors were affected by bias or other improper considerations,” the report said. “Rather, we concluded that they were based on the prosecutor’s assessment of facts, the law, and past department practice.”

The report has been highly anticipated in Washington, not least by President Trump, who has argued that a secret coterie of F.B.I. agents rigged the investigation to help Mrs. Clinton win the presidency. The findings cite no evidence to support that [conspiracy] theory.

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