Recently in Politics Category

Racists Under Every Bed

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During the infamous McCarthy Era, it was said that Senator Joe McCarthy and his cohorts were "seeing communists under every bed."  Accusations of racism today occupy exactly the same as position as accusations of communism then.  There are, of course, real racists today just as there was some amount of communist infiltration then.  But the grossly excessive accusations on the thinnest evidence and the willingness of far too many people to pounce on the accused has created a witch-hunt atmosphere.

The latest incident is so absurd that it could very well be a satire in The Onion, but it is not.  Attorney General Jeff Sessions, giving a speech to the National Sheriff's Association, said, "The office of sheriff is a critical part of the Anglo American heritage of law enforcement."  Who could possibly object to an innocuous and historically accurate statement like that?  According to Aaron Blake at the WaPo:

Perhaps the two most full-throated responses came from Sen. Brian Schatz (D-Hawaii) and the NAACP. Schatz called it "appalling." The NAACP said they were Sessions's "latest racially tinged comments" and that it "qualifies as the latest example of dog-whistle politics."
Seriously?

California Not Seceding After All

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Well, looks like Californians won't be donning gray uniforms and replacing the bear flag with the stars and bars.  Initiative 17-0005, filed by Cindy Sheehan et al., has failed to qualify.  The AG's summary of the initiative, minus the cost part, is:

Repeals provision in California Constitution stating California is an inseparable part of the United States. Directs Governor, in consultation with those members of Congress who represent California, to negotiate continually greater autonomy from federal government, up to and including agreement establishing California as a fully independent country, provided voters agree to revise the California Constitution. Creates new state commission to research and make recommendations on ways of increasing California's autonomy and independence.
I'm so relieved.

In Praise of Chads

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Brian Klaas has this article in the WaPo:

This week, the U.S. government confirmed that Russian hackers infiltrated voting systems in several states, having targeted 21 of them. While there is currently no evidence suggesting any votes were changed, a hostile foreign power did gain access to voter registration databases -- the vital foundation of election integrity. After all, if you control who can and cannot vote, you control a democracy.

America's foolish experiment with digital voting processes must end. The Kremlin -- or other hostile foreign actors -- will certainly strike again. It's time for good old-fashioned paper to make a comeback.

The Memo and the Mueller Probe

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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.

The Memo

The controversial memo by the House Intelligence Committee has been released and is available here.

Prior to the release, Kimberly Strassel had this article in the WSJ titled "Memo Reading for Nonpartisans: Ignore the spin. When the document goes public, here's what to look for."

I don't see anything in the memo that constitutes a disclosure that is damaging to our intelligence operations, which would be the primary reason to keep it secret.  In the run-up to release, the FBI maintained that the problem was material omissions.  It certainly is possible to mislead with half-truths, as we have noted many times on this blog.  The obvious remedy would be to supply the missing material, if that can be done without making damaging disclosures.

The memo alleges that the FBI sought a FISA warrant against an advisor to the Trump campaign without informing the FISA court that a substantial portion of the information submitted for probable cause was paid for by the Clinton campaign.  What would "the rest of the story" be that could make this not serious misconduct?  That other information provided made such a compelling case that this information was immaterial?  That seems unlikely. 

Strassel notes, "Ignore any arguments that the dossier was not a 'basis' for the warrant or only used 'in part.' If the FBI had to use it in its application, it means it didn't have enough other evidence to justify surveillance."  That doesn't quite follow.  It's not unusual to pile on everything you have even if you think less should be enough.  After all, the court might not agree with your probable cause assessment.  But even if the other evidence was abundant, it is still misleading to provide the Clinton-campaign-funded information without disclosing that it was so funded.  We will wait and see what the FBI has to say.

Prop 57 - Juveniles tried as adults

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This morning, the California Supreme Court issued its opinion in People v. Superior Court (Lara) (S241231).  The issue was whether Proposition 57 applies retroactively to juvenile cases that had been directly filed in adult court prior to it being passed in the November 2016 election.  In addition to permitting the release of inmates who commit "non-violent" offenses, Proposition 57 mandates that all allegations of criminal conduct against a minor (individuals under age 18) must be initiated in juvenile court.  In other words, a delinquent minor can no longer have charges directly filed against him or her in adult court.  All cases, regardless of the severity of the crime, must be initiated in juvenile court.  If a minor (age 14+) commits certain enumerated crimes (such as murder or certain sex offenses), a prosecutor can file a motion for a "transfer hearing" which requires the juvenile court to evaluate factors such as the minor's maturity level, degree of criminal sophistication, prior delinquent history, and whether the minor is capable of rehabilitation.  If, based on those factors, the juvenile court concludes that the minor should be tried as an adult, the case can be transferred to adult court and all proceedings from that point on occur as if the minor is an adult.

Prior to Proposition 57, minors age 14 or older who committed certain serious crimes could be tried in adult court in one of three ways: (1) statutory waiver - mandatory direct file in adult court; (2) prosecutorial waiver - discretionary direct file by the District Attorney; or (3) judicial waiver - upon motion, juvenile court had authority to transfer the case to adult court after holding a "fitness hearing."  Proposition 57 eliminated statutory and prosecutorial waiver.  

The State of the Union and Crime

The Manhattan Institute asked several of its scholars for the "top takeaways" from the President's State of the Union address.  Here is Heather Mac Donald's note:

The president called for reforming prisons to help inmates get a second chance at life after their release. That is a wiser approach to criminal justice reform than attacking "mass incarceration," a duplicitous term that ignores two crucial facts: first, that every prisoner is charged and sentenced individually through the due process of the law, and second, that the only criminals who end up in prison either have very long records or have committed very serious crimes. Incarceration played a crucial role in the twenty year crime drop from the early 1990s through the mid-2010s. But while the incarceration build-up was both procedurally fair and necessary, more can be done to try to help ex-cons become productive citizens. The main focus should be on having every prisoner work at a paying job while incarcerated that will give him usable skills on the outside. Universal work for inmates is costly and logistically difficult, especially with high-security prisoners; unions have fought prison labor to avoid competition. But it is a challenge worth taking on to try to break the cycle of recidivism.
I agree that in terms of in-prison programs, employment should be number one.  The long-standing fears that prison production will cost some law-abiding Americans their jobs should not be taken lightly, but surely in today's global economy segments can be identified where substantially all of the market is imported. 

The fact that the President did not include a call for large-scale reductions in sentencing was also quite encouraging.  His emphasis on the MS-13 gang was warranted, but domestic gangs cause great harm as well.  Helping the areas most afflicted by gangs will require domestic efforts as well as immigration enforcement.  Later, while discussing the drug problem, the President said, "We must get much tougher on drug dealers and pushers if we are going to succeed in stopping this scourge."  That does not sound like he is buying the line that drug dealer are harmless "non-violent offenders."

Helping the most afflicted areas will also require cooperation between state and federal authorities; the mindless "resistance" attitude of some local officials is killing their own people and needs to stop.

Trey Gowdy for USCA4?

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Congressman Trey Gowdy has announced he will not seek reelection, Reid Epstein reports for the WSJ.

On Wednesday, Mr. Gowdy said he would be "returning to the justice system."

"I will not be filing for re-election to Congress nor seeking any other political or elected office," he said. "Whatever skills I may have are better utilized in a courtroom than in Congress, and I enjoy our justice system more than our political system."

Surely he is not worried about reelection if he chose to run.  His district is solidly Republican.  He must have something else in mind.

Hmmm.  "Returning to the justice system," but not any "political or elected office."  The latter rules out his old job as local prosecutor or a run for state attorney general, which are both elected offices.  The federal judicial vacancy website lists one current vacancy on the Fourth Circuit with no nominee and one upcoming vacancy.  There is a South Carolina District Court vacancy, but it has a nominee already.

Does Mr. Gowdy have his eye on the Fourth?  He would be a definite improvement to a court that has gone downhill lately.

Prison Reform vs. Sentencing Reform

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The liberal/libertarian contingent is all atwitter (so to speak) that President Trump might give a boost to prison reform in his State of the Union address.  See, e.g., this post from Sentencing Law and Policy, largely quoting an article in the National Review.

If they're right about what the President will say, more power to them, and him.  Conditions in federal prison are good, but this cannot uniformly be said for the states.  Same with health care and vocational training.  

Prisoners are our fellow human beings.  In the great majority of cases, they earned their way to incarceration.  But almost all will return to civil society one day, and for their sake  --  and more importantly for ours  --  they should be given every reasonable chance to lead a safe and productive life.

The reason our liberal/libertarian friends have mostly (if implicitly) given up on "sentencing reform" is, I suspect, that they understand that the President knows this actually means "mass sentencing reduction for drug dealers," a program he is wisely not about to embrace (and that, over the last couple of years, has, at the federal level, sunk from moribund to deceased anyway).

UPDATE:  Prison reform, though welcome in my view, can still fail if its advocates forget the old saw, "When you get greedy, you get burned."  I see from the follow-up story that some advocates want quietly to tack on a sentence reduction proposal, one that would water down mandatory minimums for criminals with more extensive or serious records.  They apparently view this as a clever idea to give the decarceration movement some life.  What it actually amounts to is a poison pill.  But I don't do their legislative strategy for them.
Siobhan Hughes reports for the WSJ:

Senate Finance Committee Chairman Orrin Hatch (R., Utah) said he would retire when his term ends early next year, opening the door for a possible political comeback by 2012 GOP presidential nominee Mitt Romney.

"Every good fighter knows when to hang up the gloves," Mr. Hatch, 83 years old, said in a statement. "And for me, that time is soon approaching. That's why, after much prayer and discussion with family and friends, I've decided to retire at the end of this term."

Senator Hatch has been a champion of the cause of justice for a long time.  His leadership on the habeas corpus reforms of the Antiterrorism and Effective Death Penalty Act of 1996 was essential to that landmark legislation.  We thank him for his service and wish him well in his retirement.

Flip a Coin for Legislative Control

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Think one vote never makes a difference?  Take a look at the Virginia House of Delegates. Jim Morrison and Fenit Nirappil have this report for the WaPo.

The election for District 94 in the Virginia House was previously thought to have been decided by one vote.  However, one vote for that had previously been thrown out has now been found to be a valid vote for the erstwhile loser, leaving a tie.

If the Republican wins this seat, the House will be 51-49.  If the Democrat wins, it will be 50-50.  By state law, a tie race is decided by lot.

I will bet that more than a few people in this district are wishing they had voted now.
Special Counsels, and Independent Counsels before them, were created because the Nixon era showed us that the public cannot attain the high degree of confidence in investigations of powerful officials, particularly the President, that is needed to entrust those investigations to the Justice Department.  DOJ's highest officers are, of course, themselves politically appointed, and thus accountable, in a potentially unwholesome way, to the man in the Oval Office.

The question has now been raised whether this tradeoff  --  an increase in independence bought at the price of a decrease in political accountability  --  has its own problems.  The answer is:  Sure it does.  Tradeoffs always do.  This is why they're called tradeoffs rather than windfalls.

The Special Counsel tradeoff is an important question that has not received sufficient discussion, cf. Justice Scalia's dissent in Morrison v. Olson. But another question has surfaced as well, one we should have expected:  Whether, in avoiding a political slant in one direction, the appointment of a Special Counsel has a natural momentum to create a slant in the other.  That question is usefully explored in this morning's USA Today op-ed.

Preview:  The op-ed's answer is "yes."  I agree, but would suggest a remedy different from the one proposed.

You Got to Know When to Fold 'Em

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How do you get judges confirmed in a legislative body where the minority has more power to block action than in nearly any other body in the world?  The WSJ has this editorial.

While you were watching other news, the U.S. Senate this week made major progress confirming judges. Credit goes to Majority Leader Mitch McConnell, who threatened to make Senators work on the weekend, including Friday. The horror.
The editorial concludes: "Maybe the Steve Bannonistas should start giving Mr. McConnell some political credit."

Manafort Indicted

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Aruna Viswanatha and Del Quentin Weber report for the WSJ:

WASHINGTON--Former Trump campaign manager Paul Manafort was taken into custody Monday on charges that he laundered more than $18 million in funds from his work for a pro-Russia party in Ukraine through offshore accounts.

In a separate plea deal in court documents that were unsealed Monday, George Papadopoulos, a foreign-policy adviser to the Trump campaign, admitted to lying to the Federal Bureau of Investigation about his contacts with a professor connected to Russian government officials.

Cons for Congress?

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In a column in the WSJ, Karl Rove looks at "Steve Bannon's Motley Crew of Challengers."

The first House candidate Mr. Bannon has blessed is former Rep. Michael Grimm, who was forced to resign his New York seat in 2015 after pleading guilty to tax fraud. Recently released after seven months in the federal pen, Mr. Grimm will challenge his successor, Rep. Dan Donovan. Presumably Mr. Grimm won't campaign in his orange prison jumpsuit.
I've seen this movie before.  Nominate a bunch of unelectables and hand the seats and the majority to the Democrats on a silver platter.  I'd rather not see it again.

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