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DOJ Inspector General to Investigate Comey

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JIm Comey, a friend and former colleague of mine from the US Attorney's Office, will be investigated by the Justice Department's Inspector General.

Comey was in an impossible position in this election.  The very worthwhile tradition in the Department and the FBI is not to influence a campaign  --  something a free country must honor.  But, as Paul Mirengoff describes here, Comey was damned no matter what he did.

Comey would have conferred a big advantage on Trump if he had decided to recommend prosecuting Clinton -- a decision that, in my view, would easily have been defensible.

Comey would have conferred a big advantage on Clinton if, having decided against prosecuting her, he had declined to explain the basis of his decision to the American people and to Congress, and then refused to meet his promise to advise Congress if the FBI re-opened its investigation. A refusal to explain would have created the false impression that Clinton had not acted with great carelessness.

By taking a middle course -- not prosecuting but being transparent -- Comey probably came as close as he could have to not tilting the election in favor of either candidate. This doesn't mean he acted properly. It does suggest that, if one recognizes the full context of Comey's actions and the complexity of the situation, they are not really inconsistent with the "don't help or hurt a candidate" tradition he is accused of violating.

Blocking Supreme Court Nominees

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"Where you stand depends on where you sit."  That is an old and very true adage in government, equally applicable to both parties.

Is it outrageous to block consideration of a Supreme Court nominee indefinitely and leave the ninth chair empty?  For nearly 10 months now we have heard that from our friends on the left side of the aisle.  Now we have a new statement from Senate Minority Leader Charles Schumer, as Kristina Peterson reports in the WSJ.

Mr. Schumer told reporters Wednesday that if Mr. Trump were to send up a mainstream nominee, Democrats would "give them a very careful look." But if "they're out of the mainstream, we will fight them tooth and nail," he said.
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When asked if Democrats would be comfortable leaving the ninth seat open on the Supreme Court, Mr. Schumer said "absolutely."

So, it's only outrageous if the other side does it.  And how is "mainstream" defined?

Mr. Schumer declined to comment on the merits of the list of possible high-court justices that Mr. Trump released during his campaign. But the Democratic leader said on MSNBC Tuesday night that it was unlikely Democrats would embrace any Supreme Court nominee from Mr. Trump that Republicans could support.
How did we come to a situation where nominees unacceptable to one party include all of those acceptable to the other?

Was Trump's Election a Surprise?

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In the conventional sense, absolutely.  Very few pollsters or pundits predicted it.  I sure didn't.  And in a sense, the polls were close to correct:  Ms. Clinton won the national plurality by nearly 2.9 million votes.

In another sense, though, Trump's victory was the culmination of at least three trends we could have seen coming.  Two have been mentioned before on this blog: Clinton was broadly unpopular and seen as dishonest; and the country had lost faith in many of its institutions and in Washington, DC, in particular.  Hillary was nothing if not the consummate Washington insider, running in a year where that was, to put it mildly, no advantage.

But there is a third trend less often mentioned.
The Association for Los Angeles Deputy Sheriffs board has this post:

President Barack Obama made one of the final moves of his presidency appointing Debo Adegbile, the lawyer for convicted cop killer Mumia Abu-Jamal, to a six-year term on the U.S. Civil Rights Commission. In 2014, President Obama's attempt to appoint Adegbile to head the Justice Department's Civil Rights Division was rejected by the United States Senate, with eight Democratic Senators among those opposing his confirmation.
Of course, simply representing a notorious criminal is not, by itself, disreputable or disqualifying.  Criminal defendants have a right to counsel, and in capital cases that right extends all the way through habeas corpus review.*  Lawyers willing to provide effective advocacy even for the worst among us are an essential part of the system.  But the Abu-Jamal advocates went beyond the pale, as has been documented elsewhere.  ALADS concludes:

The antipathy of President Obama towards law enforcement has been reflected from his first days in office all the way through this appointment. From his earliest days in office, when he accused a Cambridge police officer who was simply doing his job of "acting stupidly" and continuing with quick condemnations of use of force immediately after incidents occurred, despite lacking knowledge of the underlying facts, President Obama has by his words and actions made clear his disrespect for law enforcement. Now President Obama has taken his final parting shot at law enforcement through his appointment of Debo Adegbile, a man, found unfit by the United States Senate to head the Civil Rights Division of the Justice Department, in large part because of his representation of a convicted cop killer.

Jeff Sessions, the Anti-Racist

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As has become an unfortunate habit with the Left, the snarl "RACIST" tends to begin the debate.  It's designed, so I have found, to end the debate as well, because the idea is not to exchange views but to bully the opponent into silence. White privilege, reparations, shaming and all that.

This same tactic is apparently going to be the main strategy deployed by opponents of Sen. Jeff Sessions' nomination to be Attorney General.  

I would like to say the ploy has nothing more than its usual degree of tiresome odiousness, but that would be wrong.  It has more than the usual degree, because, in fact, for his entire career, Sessions has worked to preserve and improve black lives.

Did Michael Moore Commit Bribery?

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Michael Moore is an obnoxious jerk, but most of what he does is within the bounds that we must tolerate as the price of freedom of speech.  Yesterday, though, he may have stepped over the line in a Facebook post addressed to Republican electors.

But some states have made it "illegal" for you to vote any other way than for Trump. If you don't vote for him, your state will fine you $1,000. So here's my offer to you: I obviously can't and won't give you money to vote tomorrow, but if you do vote your conscience and you are punished for it, I will personally step up pay your fine which is my legal right to do.
Stepping up and paying someone's fine might be a legal right, but is promising to do so in order to influence that person's vote a legal right?  I think it's a legal wrong.

Blowing Smoke on Sentencing Reform

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The pro-defendant Marshall Project has published a piece setting forth four reasons that mass sentencing reduction for drug traffickers  --  more often palmed off as sentencing "reform"  --  might do better in this Congress than the last one.

What the piece actually establishes is that a certain weed is more popular at the Marshall Project than I had thought.

Sen. Sessions Wins Easily -- Make Me a Bet!

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Says here that Jeff Sessions wins confirmation as Attorney General with a bi-partisan vote of 57-43 (or 56-43 if Sen. Heitkamp (D-ND) has left the Senate to become Secretary of Agriculture and has not been replaced).

Also says here that the confirmation takes place within days of President Trump's inaugeration.

Any takers?
The direction of the Supreme Court was one of the most important issues in the election, and rightly so.  Over the last three generations, both the size of government and the Court's role in influencing it (by, for example, resolving basic cultural questions about marriage, abortion, gun rights, free speech and criminal procedure) have grown tremendously.

Ascendant Republicans and President-elect Trump want a Justice in the Scalia mold  --  an originalist and a textualist, a jurist who believes the Constitution says what it says and doesn't say what it doesn't say.  It's less clear to me what the Democrats want.  Some seem to want a liberal leader in the mold of Justice Ginsburg who will move constitutional doctrine to the left.  Others seem to prefer an "identity candidate"  --  a woman, gay, transgender, black or Hispanic  --  largely for symbolic and/or political value.

It will come as no surprise to readers that I prefer the originalist/textualist choice. Strict fidelity to the text and original meaning of the Constitution seems to me to be the best way to curb judicial license and keep the most fundamental decisions about the rules we must live under where, overwhelmingly, they belong  --  in democratic self-government.

With the filibuster for Supreme Court candidates still among the Senate's rules, however, and the Republicans having only 51 (probably to be 52) of the required 60 votes, the question is how to get a Scalia-style nominee confirmed.
There is a right way and a wrong way to invoke the "nuclear option" to eliminate the filibuster or to limit the topics on which it may be used.  There is a lawful way and a lawless way.  Harry Reid and his gang did it the lawless way.  The Senate majority of the incoming 115th Congress should do it the lawful way as the first order of business.

Roots of the Populist Wave

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Bret Stephens writes the Global View column at the WSJ.  He was that paper's most persistent and outspoken critic of Donald Trump throughout the campaign.  He has these thoughts on the global populist wave (italics added):

Proposition 66 Status

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As of 2:24 pm today, the Proposition 66 margin of "yes" over "no" is 287,711 votes.  This exceeds the number of unprocessed ballots in today's 11:59 am Unprocessed Ballots Report, which is 232,852.

The Secretary of State has until December 16 to certify for results for all races except the presidential election.

The all-but-final result on the Proposition 62, the death penalty repeal measure, is 46.9% to 53.1%.  The margin is 845,755 votes.  The 6% spread is greater than the 4% spread by which California voters rejected substantially the same proposal four years earlier as Proposition 34. 

Is Jeff Sessions a Racist?

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Larry Thompson is a former Deputy Attorney General for Pres. George W. Bush. He signed an anti-Trump letter in the recent campaign, along with quite a few other former Bush Administration officials.  His more recent letter to the editor (I believe the editor of the NYT, concerning its story on Nov. 17) tells us a good deal about Mr. Trump's nominee to be Attorney General.

Amnesty for Hillary

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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, ยง 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.
Expecting the sourpuss contingent at the New York Times to give Jeff Sessions a fair shake is like expecting George Soros to have a kind word for America.  So it was no surprise when the Times' hatchet job appeared a few days ago, "Jeff Sessions as Attorney General: An Insult to Justice."  There was the usual wail about racism, as phony as it is ancient, but what caught my eye was this breathtakingly ignorant squib about Sen. Sessions and sentencing "reform":

Based on his record, we can form a fairly clear picture of what his Justice Department would look like:....Forget [about] any federal criminal-justice reform, which was on the cusp of passage in Congress before Mr. Trump's "law and order" campaign. Mr. Sessions strongly opposed bipartisan legislation to scale back the outrageously harsh sentences that filled federal prisons with low-level drug offenders. Instead, he called for more mandatory-minimum sentences and harsher punishments for drug crimes.

Question:  Does the NYT have anyone  --  really, anyone  --  in Washington who actually follows justice-related legislation?



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