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The Memo and the Mueller Probe

Former Attorney General and U.S. District Judge Michael Mukasey has this op-ed in the WSJ with the above title and the subhead "If the investigation arose from partisan opposition research, what specific crime is he looking into?"

The regulation that governs the jurisdiction of the special counsel requires that he be "provided with a specific statement of the matter to be investigated." The letter from Deputy Attorney General Rod Rosenstein appointing Mr. Mueller says he is to "conduct the investigation confirmed by then-Director James Comey before the House Intelligence Committee on March 20, 2017," which covers "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump," and any matters that may arise "directly" from that investigation.

But the investigation then disclosed by Mr. Comey was not a criminal investigation; it was a national-security investigation. Possible Russian meddling in the 2016 election is certainly a worthy subject for a national-security investigation, but "links" or "coordination"--or "collusion," a word that does not appear in the letter of appointment but has been used as a synonym for coordination--does not define or constitute a crime. The information, and misinformation, in the Steele dossier relates to that subject.

Sanctuary City Cases Appealed

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This morning the Government appealed the final injunctions against the enforcement of Section 9(a) of Executive Order 13768, "Enhancing Public Safety in the Interior of the United States," 82 Fed. Reg. 8799 (Jan. 25, 2017).  That subsection directs the Attorney General and the Secretary of Homeland Security to withhold Federal grants "to the extent consistent with law" from "jurisdictions that willfully refuse to comply with 8 U.S.C. 1373."

The Government had previously appealed the grant of a preliminary injunction, but that appeal is mooted by the grant of the permanent injunction.

The cases are:
City and County of San Francisco v. Donald Trump et al., No. 17-17478
County of Santa Clara v. Donald Trump et al., No. 17-17480.

"Travel Ban 3.0" Injunction Stayed

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From the U.S. Supreme Court in Trump v. Hawaii, No. 17A550:

The application for a stay presented to Justice Kennedy and by him referred to the Court is granted, and the District Court's October 20, 2017 order granting a preliminary injunction is stayed pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.

In light of its decision to consider the case on an expedited basis, we expect that the Court of Appeals will render its decision with appropriate dispatch.

Justice Ginsburg and Justice Sotomayor would deny the application.
Essentially the same order was entered in the Fourth Circuit case, 17A560.

Note that, unlike "Travel Ban 2.0," the stay is not selective.  The preliminary injunctions are stayed in their entirety.

Aloha, Hawaii Travel Ban / Refugee Case

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On October 10, I noted the U.S. Supreme Court's order declaring the 90-day travel ban case moot, vacating the Fourth Circuit's decision, and remanding the case with directions to dismiss it.  At the time I made this prediction:

The companion Hawaii case from the Ninth Circuit addresses two other provisions in addition to the 90-day ban.  A provision limiting the number of refugees in the fiscal year just ended became moot on October 1.  A 120-day provision will become moot 120 days from the day the Supreme Court partially lifted the stay on it, which will be later this month.  I expect a similar disposition of that case at that time.
That was not one of my bolder predictions.  It was more like shooting fish in a barrel.  Today, sure enough, the Court issued this order:

Amnesty for Hillary

In 1868, the treason trial of Jefferson Davis was pending.  He certainly did levy war against the United States, which is the constitutional definition.  See Article III, § 3.  Nonetheless, the President decided to issue a blanket amnesty to help heal the nation's wounds, and that was the end of the case.  See Case of Davis, 7 F. Cas. 63, 102.

Our country today is not as bitterly divided as it was then, but healing is still in order. 

As former Attorney General Mukasey explained in the Wall Street Journal in July, the evidence against Hillary Clinton clearly fulfills the requirements of the two criminal statutes involved, and FBI Director Comey's statement that no reasonable prosecutor would pursue the charges was just wrong.  Mr. Mukasey, after all, is a reasonable prosecutor.

Even so, there are times when other considerations come into play so that a prosecution should not be pursued even though fully justified on the facts and the law.  President-elect Trump has evidently decided that this is one of them. 
Damian Paletta and Byron Tau have this story in the Wall Street Journal.

And while candidates should generally keep their campaign promises, it is sometimes better to let those go also.
Ed O'Keefe, Jose A. DelReal and John Wagner have this article in the WaPo, with a lead paragraph that is typical of what is all over the net:

Democrats prepared to use their convention Wednesday night to raise fresh doubts about Donald Trump's fitness to serve as commander in chief, as the Republican presidential candidate called on Russia to hack into Hillary Clinton's email server to find "missing" messages and release them to the public.
But did he really say that?  His actual statement is in the next two paragraphs:

"Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press," Trump said during a news conference at his South Florida resort on Wednesday.

"They probably have them. I'd like to have them released. It gives me no pause, if they have them, they have them," Trump added later when asked if his comments were inappropriate. "If Russia or China or any other country has those emails, I mean, to be honest with you, I'd love to see them."
As I read that, he is expressing a belief that they already have the emails, having hacked Mrs. Clinton's home-brewed server a long time ago, and he is saying he hopes they release them.  That is a very different thing.

How could he possibly call on Russia to hack into a server that was taken off line and wiped a long time ago?  That doesn't make any sense.
There doesn't seem to be a flash transcript of today's hearing in its entirety, but CNBC does have a transcript of the exchange between FBI Director James Comey and South Carolina Representative Trey Gowdy, both former prosecutors.  I will paste it after the break.

Mens Rea, and Justice, Upside Down

Question 1:  Under what circumstances will Barack Obama's Justice Department charge and convict you, and seek and obtain a prison sentence, on the basis of a crime (production and shipment of infected produce), that you committed out of gross negligence, but without criminal intent?

Question 2:  Under what circumstances will Barack Obama's Justice Department refuse to charge or convict you, or seek any criminal  punishment, on the basis of your grossly negligent, but putatively unintentional, exposure of top secret national security information? 

A:  When you're Hillary Clinton.  See Director Comey's testimony today.  Director Comey's position is that Hillary's conduct matches the behavior prohibited in Section 793(f), but that it would be "unfair," and "constitutionally suspect," to seek criminal punishment because that provision allows conviction merely on the basis of gross negligence.


I thought it was possible that, for the first time in 50 years, I would go an entire campaign and agree with almost nothing the Republican candidate said.

I was wrong.  The system is rigged.  And it's rigged especially quaintly if you're a Clinton. If Madame Hillary is, not merely exempted from punishment lesser people face for criminal negligence, but rewarded with the Presidency, for God's sake, the anthem "Equal Justice Under Law" becomes a bawdy joke.

Seven Questions for Director Comey

Director Comey will appear before Congress today.  Here are seven questions I hope he'll be asked.

1.  You said that no reasonable prosecutor would have brought a case against Sec. Clinton on the facts you found.  But four well-regarded former federal prosecutors  -- Attorney General and Judge Michael Mukasey; former Deputy Attorney General Rudy Giuliani; former Division Chief Andy McCarthy of the USAO for the Southern District of New York; and former Appellate Chief for the Eastern District of Virginia (now Georgetown Law Professor) William Otis have all said that a prosecution could have been brought and probably would have succeeded.  Do you think these are all unreasonable judgments?

2.  The statute most obviously suited for prosecution is 18 USC 793(f), which forbids improper exposure of classified national security information through gross negligence. You correctly characterized Ms. Clinton's behavior with such information as "extremely careless."  Doesn't extreme carelessness provide a fully adequate basis to put before a trial jury the question whether Ms. Clinton's conduct showed gross negligence, and thus breached the statutory standard?

3.  You began your statement by reciting what the law requires for a felony or misdemeanor conviction in cases like this. You noted that gross negligence is the standard for a felony conviction. You then recited a host of facts as the FBI found them. Isn't there, at the minimum, a reasonable prospect that a trial jury would have found these facts taken together, to  constitute gross negligence?

4.  When it came time to merge these two strands and explain your decision whether to recommend an indictment, you then, oddly it seems, made no reference to the legal standard you correctly articulated a few minutes earlier.   Instead, you formulated a new standard based on features you said have been present in past cases where prosecutions have been brought for the mishandling of secret/classified information. Gross negligence  --  the statutory measure  --  was no longer included in your description, and was replaced by intent to harm the U.S.or disloyalty.

Doesn't that amount to a re-interpretation of the statute, not by the courts or Congress, but by the investigative arm of the executive branch?  And doesn't it, in effect, transform a gross negligence statute into a more typical  --  but not constitutionally  required  --  mens rea statute?

5.  Putting that entirely to one side, have there not indeed been prosecutions for 793(f) offenses based strictly on the statutory standard of gross negligence?   For example . United States v. Roller, 42 M.J. 264 (1995) (affirming 18 U.S.C. 793(f) conviction of a military serviceman who inadvertently placed classified materials in his gym bag and then took them home, which the court determined to be "gross negligence" as the statute required).  Does that case call into question your statement that a Clinton prosecution on these facts would be "unprecedented."

6.  Even if one takes the problematic view that the very unusual and prominent features of this case warrant taking into account more than "merely" the existence of probable cause and gross negligence, does it seem to you that  those features  -- principally the need for accountability from high officers of the government, and for public confidence in equal application of the law to big shots as well as ordinary people  --  suggest even more strongly that an indictment should have been recommended?

7.  If Ms. Clinton had been an employee of the FBI; had engaged in the same pattern of extreme carelessness; and had in addition displayed the same failure to be truthful in describing what she had done, and in having her lawyers delete thousands of emails before your investigation could assess their national security significance, would Ms. Clinton have been promoted or demoted  --  or fired?

Byron Tau has this article in the WSJ comparing findings from FBI Director Comey's statement with earlier statements by Hillary Clinton.

Update:  Also in the WSJ, former Attorney General Michael Mukasey has this op-ed headlined Clinton Makes the FBI's Least-Wanted List: Explaining why he wasn't recommending prosecution, Director James Comey instead showed that charges would have been justified.

Never Hillary

Hillary Clinton today escaped an FBI recommendation that she be indicted.  Many of my conservative friends are furious.  Whether they're right to be is not my point here.  
My point is that presidential elections are not won merely by staying out of jail, and that Comey's effective indictment of Sec. Clinton as a potential President was devastating. Her behavior  --  in her give-a-hoot attitude toward national security and her repeated, flagrant lying about what she was actually doing with her email servers  --  was spelled out in breathtaking detail.  And, as Comey noted in a little-cited comment near the end of his remarks:

To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences. To the contrary, those individuals are often subject to security or administrative sanctions. But that is not what we are deciding now.

Translation:  If some State Department flunky sitting at a cubical had done the same thing, he would, at the minimum, get his security clearance lifted and would receive a letter of censure. But the head of the agency did it, and now wants  --  ready now?  --  a promotion to be President.

Many criminals get away with it, simply because, for one reason or another, they're never brought to court.  But Ms. Clinton is, by her own choice, before a different court  -- the court of public opinion.  In that forum, the evidence disclosed today establishes proof of dishonor, and breach of duty, beyond a reasonable doubt.

Jim Comey's statement is here.  The Washington Post story showing how thoroughly Hillary is exposed as a serial liar is here (starting at the 14th paragraph).

Hillary Clinton Gets a Pass

Kate O'Keeffe and Byron Tau report for the WSJ:

FBI Director James Comey said Tuesday that Hillary Clinton was "extremely careless" in handling classified information while secretary of state and said scores of emails on her personal server contained highly classified information--but he said the FBI won't recommend criminal charges against her.
*              *             *
While the announcement is a major positive development for the Clinton camp, Mr. Comey's comments were hardly uncritical of the presumptive Democratic nominee, saying she and her State Department colleagues were irresponsible in their handling of national secrets.

"Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information," Mr. Comey said.
Director Comey's statement is here.

Will Hillary Get Indicted?

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Three Justice Department veterans  --  one at the top and two in the middle  --  think so.  I am one of those in the middle.  The story is here.

The San Bernardino Massacre

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I have held off commenting on the San Bernardino massacre until more was known.  Today's WSJ has a number of articles on the emerging picture and the policy dilemmas we faced as we decide what to do to reduce the risk of such horrors.

Emails, Investigations, and Espionage

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Bernie Sanders and the Democratic debate audience may be sick of hearing about Mrs. Clinton's "damn emails," but news sources as diverse as the NYT and Fox still think the story is newsworthy.

Catherine Herridge and Pamela Browne report that the FBI is now focused on whether there was a violation of the Espionage Act, 18 U.S.C. §793(f).  That is a felony punishable by up to 10 years in prison, far more serious than the misdemeanor I noted back in August.  I have copied the text of the statute at the end of this post.

Matt Apuzzo and Michael Schmidt at the NYT note the reaction of FBI agents to President Obama's statement that "national security was [not] endangered."

Those statements angered F.B.I. agents who have been working for months to determine whether Ms. Clinton's email setup had in fact put any of the nation's secrets at risk, according to current and former law enforcement officials.

Investigators have not reached any conclusions about whether the information on the server had been compromised or whether to recommend charges, according to the law enforcement officials. But to investigators, it sounded as if Mr. Obama had already decided the answers to their questions and cleared anyone involved of wrongdoing.

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