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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.
I had high hopes for Eric Holder when he was appointed Attorney General.  He had at one point been a career prosecutor, and by the mid-nineties had become the Clinton-appointed US Attorney for the District of Columbia.  He also seemed to me, from the very few interactions I had with him, to be a level-headed man with a wicked sense of humor.

He still has the sense of humor, but has become far too political as Attorney General. Among other things, he plays to the Democratic Party's constituencies pretty shamelessly, see, e.g., my post here, and did so again last Friday in his obsequious speech to those who are ostensibly (though not actually) his "adversaries" in the criminal defense bar.  A day or two later, he gave a much shorter, and perfunctory, video talk to the prosecutors whose work he's busy scuttling.

'Twas not ever thus.

About That "Unstoppable Momentum"....

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Renowned sentencing expert (and long time buddy) Prof. Doug Berman put up a post about a year ago with this title:  "Could Momentum for Sentencing Reform Now Be Unstoppable in the Federal System?"  The gist of it was that, what with Eric Holder on board, the very enlightened coalition of libertarian-leaning Republicans like Rand Paul, and liberal Democrats, would enact significant sentencing reform legislation.  ("Sentencing reform," for those unfamiliar, means only one thing, to wit, putting felons back on the street faster than they get there now).

Doug quoted a gushing article by Juan Williams in The Hill newspaper that said, among other things:

With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency -- a bipartisan success in passing new laws to reduce the nation's prison population.

So where are we now with that which is unstoppable?

Nominees and the Senate

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Al Kamen and Colby Itkowitz have this story at the WaPo on nominees left hanging "when senators ran for the exits on Friday."  They note a deplorable situation on ambassadorships -- with plenty of blame to go around -- but the pertinent part for this blog is judicial nominations.

Remember Jimmy Carter?  He was only President for one term in what seems like ages ago.  Yet he caused enormous and long-lasting damage through his judicial nominations.  It was on his watch that the Ninth Circuit became the jurisprudential disaster area that it remains to this day.  All three of the judges on the three-judge district court in the Plata prisoner release fiasco were Carter appointees.  Thank God he didn't get any Supreme Court appointments.

Until last November, Republicans were filibustering President Obama's worst nominees, a tactic they deplored when President Bush was making the nominations.  Then Majority Leader Harry Reid invoked the "nuclear option," a move he denounced as a travesty when President Bush was making the nominations.

Kamen and Itkowitz note that "the clock is not looking favorable" for the eight district court nominees pending on the Senate floor.  Hopefully, the 114th Congress will have a Republican majority in the Senate and on the Judiciary Committee, with Charles Grassley in the chair, and fringe nominees can be blocked with a simple majority vote or not even make it out of committee.

Culture, Values, Politics and Crime

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A commenter recently took me to task, disturbed that I criticized the Administration for its tepid response to the Russian-sponsored mass murder of 298 people in the Ukraine.  The commenter thought my remarks went too far in the direction of a strictly political attack.

Let me say that reasonable minds could differ about that post.  My own view is that (1) the episode was indeed mass murder, (2) our government's response was, and is, feckless, both for moral and practical purposes, and (3) fecklessness in the face of murder, and of crime generally, is a huge problem just now, and I'm going to continue to talk about it when it rears its head.


Intent, Plagiarism, and Politics

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In criminal law, intent is a big deal.  The prosecutor must often prove not only what the defendant did but his state of mind while he was doing it.  Even though the harm to the victim may be the same, there is a fundamental moral difference between intentional and accidental harm.  "Even a dog distinguishes between stumbled over and being kicked," Justice Holmes famously said.  He had a knack for putting legal concepts into concrete terms everyone can understand.

How do you prove intent?  It's usually clear from the circumstances that an act is intentional.

Intent matters in politics as well.  Aaron Blake at the WaPo's political blog, The Fix, is incredulous of Montana Sen. John Walsh's claim of accidental plagiarism at the Army War College.

It also takes a pretty big suspension of disbelief to think that Walsh lifted those passages without ill intent. Proving someone's intent is always difficult, but believing that this was anything other than an attempt to cheat takes some logical leaps that are pretty hard to make.
We will be addressing intent in a Supreme Court case on threats in the coming term, Elonis v. United States.

Update:  Bill's later post asks whether plagiarism can be a crime.  Could be.  "Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct."  10 U.S.C. ยง 933; see also Parker v. Levy, 417 U.S. 733 (1974).  The military is different.  Funny the statute still says "gentleman."  We've had women officers for a long, long time.

Colorado Gov. Race Now A Toss-Up

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Colorado Governor John Hickenlooper was considered "safe" for reelection not so long ago.  Real Clear Politics changed its rating to "toss-up" last week.

On July 15, I noted that the NBC/Marist Poll had Hickenlooper ahead 49-43.  Conventional political wisdom is that an incumbent is in trouble if early polls show less than a majority, even if leading the opponent.

Two polls since then have come out 43-44 and 44-43, Quinnipiac and PPP respectively.  I generally dislike the term "statistical dead heat" in political poll reporting, but it fits here.  That's a dead heat.
 
Dan Frosch has this story in the WSJ:

Republicans have tried to cast Mr. Hickenlooper as indecisive, noting his move last year to delay the execution of a convicted murderer, Nathan Dunlap, over concerns about the death penalty's morality. Mr. Hickenlooper didn't grant Mr. Dunlap clemency either, instead issuing a "temporary reprieve."

Baghdad Harry

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Alexander Bolton of the Hill covers  Senate Majority Leader Harry Reid's statement to reporters yesterday assuring the nation that America's southern border is secure.  He made this remarkable statement as news video streams across the airwaves showing tens of thousands of foreigners flooding across the border into Texas, Arizona and New Mexico overwhelming the already inadequate border patrol and forcing agents to become caregivers to thousands of Central American children rather than a security force looking for drug smugglers and terrorists.   In the face of what is clearly a complete breakdown of U.S. border security Senator Reid is trying to BS the entire country.  Some may remember Mohammed Saeed al-Sahaf, Saddam Hussein's Minister of Information better known as Baghdad Bob, who in April 2003 stood in front of cameras on a Baghdad street and announced that Saddam's army had repelled coalition forces, while U.S. tanks were passing behind him. 

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