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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."

New Chief for ICE?

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Devlin Barrett reports for the WSJ that Sarah Saldaña, US Attorney for the Northern District of Texas, "is the leading candidate to run the Immigration and Customs Enforcement agency, according to people familiar with the discussions."

ICE is one of the agencies created in the post-9/11 reshuffle of homeland security organization.  It has many of the functions previously performed by the old Immigration and Naturalization Service.

And the story has this nugget:

Ms. Saldaña got her current job after an unusual political standoff in which her nomination to become U.S. attorney was backed by Sen. John Cornyn (R., Texas) and opposed by some Democrats in the Texas congressional delegation.

Arizona Primary

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Arizona had its primary election yesterday.  Mark Brnovich won the Republican nomination for Attorney General, defeating incumbent Tom Horne, Alia Beard Rau reports for the Arizona Republic.

I lauded Horne on this blog for moving forward with a "fast track" application for Arizona's capital cases in federal habeas corpus (here and here), but unfortunately the follow-through has been lacking.  I expect Brnovich to take up the fight if he wins the general election.  (He and I serve together on the Federalist Society's Criminal Law Practice Group Executive Committee, BTW.)

The general election is not a foregone conclusion, though.  The race was close last time, the Democratic nominee had no primary opponent, and she has a formidable warchest.

In the Governor's race Doug Doucey has taken the Republican nomination.  I haven't followed that race, but Doucey has endorsements from people whose judgment I respect.  His campaign website is nearly devoid of useful information on his positions, as most campaign websites are these days.
The sitting Governor of Colorado, John Hickenlooper, is in a heated re-election campaign.  One of the issues is his handling of the case of convicted multiple killer John Dunlap.  

Dunlap gunned down four people in a Chuck E. Cheese in Aurora in 1993.  He was sentenced to death, and the sentence has been affirmed after the usual multiple layers of review.  Nonetheless, and despite the fact that Hickenlooper originally ran for office as a death penalty supporter, he granted Dunlop a "temporary reprieve" earlier this year, saying that Dunlop would not be executed while he was in office.

In a TV interview with CNN, now reported by the Denver Post, Hickenlooper said that, should his pro-death penalty opponent, Rep. Bob Beauprez, win, he would consider granting "full clemency" to Dunlop.

It's hard to know where to begin with this story.


Pretrial Habeas Corpus and Gov. Perry

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Once upon a time, the use of habeas corpus in criminal cases was almost entirely pretrial.  A person jailed pending trial for alleged conduct that he contended was not a crime could get that issue reviewed via habeas corpus.  The most famous American case involved two men accused in the Aaron Burr conspiracy.  See Ex parte Bollman and Swartwout, 8 U.S. 75 (1807).  The writ could be used post-trial to attack the jurisdiction of a court of limited jurisdiction, such as a court-martial of a defendant who claimed to be a civilian, but collateral attack via habeas corpus on a conviction by a court of general jurisdiction was simply not available.  It was over 40 years after the formation of the federal courts before anyone tried, and the attempt was swiftly shot down in Ex parte Watkins, 28 U.S. 193 (1830).

Today the situation is very much the opposite.  We don't see a lot of pretrial habeas corpus these days, but Texas Governor Rick Perry is doing it old school.  Eugene Volokh has this post with a link to the application. Perry is in "custody," a jurisdictional requirement for habeas corpus, because he is out on bond.

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.

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.

Nixon in 2016?

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Now here's an intriguing thought. Paul Kane and Robert Costa have this article in the WaPo on the possible impact of the Ferguson debacle on the possible 2016 ambitions of Missouri Governor Jay Nixon.
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.



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.


Politics & Prosecution, a Toxic Brew

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I was a federal prosecutor for 18 years under administrations of both parties (from William French Smith to Janet Reno).  Not once was I asked to participate in a case I had even slight reason to suspect was politically motivated. Apparently, times have changed.

Kent's most recent entry, and mine before it, discuss prosecutions in which the stench of politics is unmistakable.  The former is a federal case against a bond rating service, Standard & Poor's, which, much to the Administration's consternation, downgraded US sovereign debt when it became clear that the federal government was not going to take any serious steps to start to pay down, or even slightly curb the growth of, the largest national debt in the history of civilization. Runaway borrowing and debt has been a staple of Republican attacks on the Administration, which now apparently feels like S&P was giving aid and comfort to Obama's political opponents.

If there's a place in the US Attorneys Manual that authorizes prosecutions for that reason, I missed it.  Perhaps it's been added more recently.

The other case was brought by the same local Texas prosecutor's office that launched the "cutting edge" (to be charitable) campaign finance indictment against then-Congressman Tom DeLay.  Even liberals had some heartburn about that; it was well grounded heartburn, since the conviction, and the Rube Goldberg prosecution theory upon which it rested, did not survive even the first round in the state appellate courts.

We now see from that same district an indictment, this one against Gov. Rick Perry, for having the audacity to ask a convicted drunk-driving prosecutor to step aside and, when she did not, vetoing legislation that would have funded a part of her office.

I don't know whether the First Amendment or the separation-of-powers challenge to the indictment will be the primary basis for its dismissal, but I'll bet good money that this breathtakingly vindictive and concocted prosecution will never see a single juror impaneled.

I have been all over libertarians recently for their juvenile, unserious and sometimes dishonest arguments about the death penalty, plea bargaining and the rule of majoritarian law.  But cases like these show that libertarians have an important point: That the power to prosecute is a fearsome thing, and, when employed as political tool, is the quick road to tyranny.

The World's Most Absurd Indictment

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I'll be the first to admit I know zilch about Texas law.  I'll also freely admit that I'm no fan of Gov. Rick Perry, one of the most obviously not-ready-for-prime-time Presidential candidates I've ever seen.  My opinion of him did not improve when he started touting his program to save money (or, more accurately, to shift costs onto future crime victims) by an early prison release program.

But the indictment brought against him today by a grand jury sitting in Texas's nutty left-wing capital, Austin, is probably the most exotic and preposterous felony charge I've ever seen, and I've seen lots.  It makes the political prosecution of former Texas Congressman Tom DeLay look serious by comparison.

In brief, Perry has been indicted for vetoing an appropriation for a prosecutor's office after the prosecutor, a Democrat, was convicted of drunk driving and sent to jail. And no, your eyes are not deceiving you:  A governor got indicted for vetoing a bill.  From the Wall Street Journal, here's the story.

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