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Fools, Damned Fools, and Clients

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Michael Barone writes in the Washington Examiner:

"About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop." So supposedly said Elihu Root, New York lawyer and secretary of war and of state, and U.S. senator from 1909 to 1915.

Today it seems that many liberal "would-be clients" are in desperate need of what Root called "a decent lawyer."

Take Texans for Public Justice, the so-called public interest group that has been pushing for the indictment of Gov. Rick Perry by a grand jury at the urging of special prosecutor Michael McCrum.

The basis for the indictment is, in the words of liberal New York Magazine writer Jonathan Chait, "unbelievably ridiculous."

Taranto on Obama's Ferguson Statement

Catching up on some stuff that happened while I was out of town, I found an interesting example of the political cross-currents in the Ferguson, Missouri matter.  James Taranto of the WSJ is not a big fan of President Obama, to put it mildly.  He does, though, give the President high marks for his statement last week in this column.

Multiple investigations are under way into the circumstances under which Michael Brown was killed. They must proceed deliberately, in accordance with the rule of law. "I have to be very careful about not prejudging these events before investigations are completed because, although these are issues of local jurisdiction, the [Department of Justice] works for me and when they're conducting an investigation I've got to make sure that I don't look like I'm putting my thumb on the scales one way or the other," the president said.

People in positions of authority have an obligation to conduct themselves with reason and restraint. Whether or not the Ferguson police have lived up to that duty, the president, in his public statements on the crisis, has.

The Only Thing That Actually Counts

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The shooting in Ferguson, Mo. has been the launching pad for all manner of expounding about pre-existing agendas.  Libertarians have used it to urge the disarming of the police (called "demilitarization" for their present purposes); liberals have used it to push for legalizing dope; anti-white racists have used it to demand reparations ("reparations" being the word that radicals of one race use to promote appropriating money they did nothing to earn from people of a different race who did nothing to bring about the practices they condemn).

All this is the expected, if not exactly wholesome, reaction of a society that encourages free speech.  But it deflects  --  and is largely designed to deflect  -- from the one thing that actually counts.

DOJ's Version of Unbiased Justice

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My friend Paul Mirengoff at Powerline has a depressing and ominous assessment of the chance that Officer Darren Wilson, the Missouri cop who shot unarmed but huge 18 year-old Michael Brown, can get a fair shake from the federal grand jury looking into the case.

Eric Holder's Justice Department is in Missouri, some 50 strong according to Megyn Kelly, to investigate the shooting of Michael Brown and to decide whether to charge police officer Darren Wilson with civil rights crimes. The investigation and decision is in the hands of the Criminal Section of the Civil Rights Division.

How much confidence can Americans have in the fairness and objectivity of this unit? The answer, I submit, is little if any.

Christian Adams at PJ Media has been covering the Criminal Section of the Civil Rights Division for years. PJ Media had to file a lawsuit to obtain the resumes of the lawyers Holder has brought into that group. According to Adams, it turned out that every one of his hires is a left-wing activist, and that some have histories of anti-police activity. 


What follows is a hair-raising rundown of the background of the lawyers who will be running the grand jury.  The short of it is that they're a bunch of far left ideologues.  

If you thought the Rick Perry indictment was a creature of politics, you're right. But I fear it was just a rehearsal.

Where Have All the Liberals Gone?

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People of my generation well remember the haunting anti-war song "Where Have All the Flowers Gone" written by Pete Seeger and popularized by Peter, Paul and Mary. It was running through my head this morning, and got me to thinking, as I mulled the media's coverage of the shooting in Ferguson, Mo.:  Where have all the liberals gone?

In days of yore, when there was a notorious homicide or some other infamous episode, what I used to hear was

--  "No rush to judgment!"

--  "In America, everyone is presumed innocent."

--   "We can't try this case in the press."

--  "No trial by mob."

I'm just not hearing that at all these days. 

Where have all the liberals gone?


The Other Side of the Story in Ferguson

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I take press reports with a grain of salt, not because I think reporters are biased (although some certainly are), but because I much prefer facts about alleged crimes to be proved by the rigors of presentation in court, in particular oath-taking and cross-examination.  This is one reason that, for example, I put no great stock in one-sided "reports" that, 22 years after the fact, Cameron Todd Willingham has been "proved" innocent by "more advanced" scientific testing conducted by his partisans without oversight, scrutiny, or adversarial process of any kind.

It is with this skepticism in mind that I bring you this report from the New York Post:  "A Dozen Witnesses Say Ferguson Teen Attacked Cop Before Shooting".  There is also a report out that the cop, Officer Darren Wilson, suffered a facial fracture as a result of being attacked by the teenager he shot.

If these reports are true, it's very difficult to see how a scrupulous prosecutor can indict Wilson.

Unfortunately, with the politically edgy Civil Rights Division on the case, the operative word here is "scrupulous." 

We shall see.

UPDATE:  The original source for this story, St. Louis Post-Dispatch reporter 
Christine Byers, has been on family and medical leave since March, and has tweeted that the story does not appear in the paper because "it did not meet standards for publication." This makes me happy that I started this entry by reiterating my skepticism about about media reports.  Of course the story may still be true; we should find out more in the days to come. 

The Political Uses of Ferguson

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It was to be expected that the Usual Suspects would show up in Ferguson to push the Usual Causes, and would do so without finding out, or having any great interest in finding out, what actually happened.

Was this an NFL-sized gangbanger who had just committed a strong-arm robbery rushing a cop?  Was it a quick-trigger cop who got the drop on a teenager whose main "crime" was walking in the middle of the street?  Was it something else?

We don't know yet, but this fact makes no difference when the main point is to Fire Away.  Thus I bring you this Grievance-on-Steroids piece in the Atlantic.  I never thought I would say this, but it's enough to make Al Sharpton blush.

What Is Known about the Ferguson Shooting

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We don't as yet know anything like all the facts necessary to reach a judgment about whether the police officer who shot and killed Michael Brown in Ferguson, Mo. acted justifiably or committed murder, or something in between.

But we have learned some facts, and I want to present them without comment.

--  The Washington Post and numerous other outlets report that Brown was shot six times, all from the front, and had marijuana in his system.  The claim that he was shot from behind appears to be false.

--  Minutes before he and the officer encountered one another, Brown and another male robbed a convenience store and, in doing so, forcibly shoved a clerk much smaller in stature. The video is here.

--  It is often the case that a single shot will not disable a person charging at a police officer (which is not to say that Brown was, in fact, charging the officer here, a question that remains unsettled).

--  Brown was 6'4" and weighed 292 pounds, which, I believe, is larger than the average size of an NFL player.

--  One report  in a local paper states that Brown had recently taken up "rap" lyrics, which included, as apparently is usual for such things, explicit references to drugs and violence.

I repeat that none of these facts, individually or together, provides even a rudimentary basis for judgment.  But facts they are.

A Defense, Sort of, of the Perry Indictment

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As I've noted, a chorus of honest liberals has exposed and denounced the Perry indictment for the legally hollow political stunt it is.  See, e.g.,  this article and this one.  But some on the Left are holding out.

Exhibit A is this piece in The New Republic.  The thesis is that Perry, being a Very Bad Man, more-or-less deserves the wrath of a criminal accusation whether or not he's, ya know, actually guilty.  The indictment is, if not exactly cricket, at least clarifying.

Well, look, that's cool.  Some might say that taking such a view of the role of criminal law is repulsive.  I beg to differ.  It is, as the author argues, clarifying  -- clarifying about what lies ahead when the poisonous (and Marxist) theory that politics is everything prevails.
Rosemary Lehmberg holds the office of District Attorney of Travis County, Texas because she was elected to it.  The question  --  given that she served time on a drunk driving conviction and acted like a belligerent teenager in the lockup after her arrest  --  is: How?  And the answer is an old standby, though often overlooked in the perplexity of the moment:  

She got elected because the alternative was even worse.

Now that might have you wondering, good grief, who was the alternative?

The alternative was an anti-death penalty crackpot, one-time Judge Charlie Baird. Baird's partisan and illegal antics in trying to posthumously exonerate multiple child killer Cameron Todd Willingham are epic, and have been chronicled by Kent here, herehere, and here.

So if you're in Travis County, who do you want "enforcing" the law, an ill-tempered drunk or a reckless, ideological zealot?

Answer:  Ummm, move.

Hard Legal Questions for the Perry Indictment

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Eugene Volokh of UCLA is a super smart, call-em'-as-you-see-'em professor of law. He's also the owner of the legal blog, the "Volokh Conspiracy."  I have disagreed with some of the "Conspirators" from time to time, as in our differing views on whether Eric Holder committed perjury when he testified before Congress that there was no "potential prosecution" of Fox News reporter James Rosen.  But the Volokh Conspiracy is widely read and, I think, almost universally respected.

As the blog of the Federalist Society reports today, Prof. Volokh has three tough questions about the indictment of Gov. Rick Perry, even taking the indictment on its own questionable terms:

1. To begin with, the law applies to a public servant's misusing property that is in his "custody or possession." What property was in the governor's custody or possession?

2. Beyond this, how does vetoing the appropriation qualify as "misuse," in the sense of "dealing with" the $7.5 million "contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant"?

3. Is the prosecution's theory that vetoes of appropriations are criminal if they are not seen as "faithful[] execut[ion of] the duties of the office of Governor" -- though deciding whether or not to "approv[e]" a bill is itself part of the duties of that office? Or is it that such vetoes are criminal if they do not "to the best of [the Governor's] ability preserve, protect, and defend the [federal and state] Constitution and law.  ###

Prof. Volokh's longer and more detailed analysis is here.



The Perry Indictment in One Picture

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Barack Obama's Dead Fly's photo.

Federalism and Other Head Fakes

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We've been hearing for years that if drugs are to criminalized at all, it should be left to the states, and that the federal government has no business in the field.

There are legitimate questions about the scope both of federal police power and the reach of its authority under the Commerce Clause.  In my view, such questions are more pressing now than ever in light of the ominous combination of the burgeoning regulatory state and the increased politicization of the Justice Department.  But the question whether the federal Controlled Substances Act is within Congress's power has been raised and settled long ago.  To my knowledge, after dozens if not hundreds of challenges, not a single court has held the CSA unconstitutional, and the most serious challenge to it was rejected almost ten years ago in Gonzales v. Raich.

One must wonder, though, about the authenticity of the complaints about federal overreach.  While many such arguments are rooted in a sincere if (in my view) mistaken view of federal power, others  --  most, I suspect  --  are just bellyaching by dopers who love getting blasted and want to belittle anything that stops the fun.

If these people were sincere in their federalism arguments, surely I would be hearing from them about the U.S. Justice Department's astonishing decision to "order" a second autopsy of the victim of the police shooting in Ferguson, Mo.  In my numerous years as a federal prosecutor, and more recently as a law professor, I never heard that the Justice Department had the authority to order any such thing. I'll be grateful to any reader  --  especially among those wanting criminal law to be left almost exclusively to the states  -- who can fill me in.

The World's Most Absurd Indictment, Cont'd

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The poisonous prosecutorial stunt masquerading as the Perry indictment is being exposed for what it is by honest liberals from coast to coast.

This, for example, is what Alan Dershowitz (whom I debated on CNN about capital punishment) is reported to have said:

Harvard Law Professor Alan Dershowitz calls himself a "liberal Democrat who would never vote for Rick Perry," but he's still "outraged" over the Texas governor's indictment Friday on charges of abuse of power and coercion.

The charges are politically motivated and an example of a "dangerous" trend of courts being used to affect the ballot box and politics, he told Newsmax on Saturday.

"Everybody, liberal or conservative, should stand against this indictment," Dershowitz said. "If you don't like how Rick Perry uses his office, don't vote for him....

Dershowitz also told Newsmax Perry was well within his rights when he vetoed the money for Lehmberg's office, as he "saw a drunk serving as DA" who "shouldn't be enforcing criminal law."

Dershowitz believes Perry will be acquitted, and the indictment will become an embarrassment to those involved.


I disagree with Prof. Dershowitz in one respect.  Perry will never be acquitted, because the indictment will never get to a jury.




Steve Hayward on Powerline writes:

[L]et's not move on before taking in the proximate cause of political dispute, the conduct of Travis County District Attorney Rosemary Lehmberg, who ironically runs the "public integrity section" of the DA's office while obviously having no public integrity whatsoever.  If you have 15 minutes of leisure and a strong threshold against disgust, take in these two videos of Ms. Lehmberg in action, first in her DUI stop (where her blood-alcohol level was .23), and then, even better, her appalling jailhouse behavior.

The videos are available here, in Steve's post.  They're quite a show.

There are some bad apples in the prosecutorial barrel, as in every other. Since Lehmberg is an elected prosecutor (having defeated the astonishing former "judge" Charlie Baird), the preferred way to remove her is through the exercise of political, not judicial, power. That of course is exactly what Gov. Perry was doing in vetoing a multi-million dollar appropriation for her office until it had cleansed itself of the stain that comes from having an out-of-control drunk and jailbird convict at its head.

If the Governor's veto is a criminal offense, I am Lynne Stewart.

I repeat my earlier prediction:  This indictment will never make it to a jury.


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