Recently in USDoJ Category

A:  Drug overdoses.

This amazing and depressing fact is only one of those included in Deputy Attorney General Rod Rosenstein's compelling defense of DOJ's policy, in the typical case, of charging the most serious readily provable offense.  Trafficking dangerous drugs is the single most frequently prosecuted federal crime.

Rosenstein's recent statement follows the break.

I don't really need to add much, so I'll limit myself to two brief comments.  First, to me, the most straightforward justification for the policy is simply that we should expect prosecutors to charge defendants with what they actually did.  An indictment should tell the truth, neither more nor less.  Second, the extent of the drug crisis, from street pushers to pill mill doctors feeding on (and building) misery, ignorance and addiction has come to the point that the arguments to go easier on drug trafficking have morphed into self-parody.  Do not expect them to generate any less enthusiasm, however, in academia.
A:  I don't know, but former Obama Administration Deputy Attorney General Sally Yates is making a pitch for the record.

She has an opinion piece in today's Washington Post.  I may go through more of it later; for now, I just want to look at the first substantive paragraph, which is regrettably representative of the deceit running through the entire piece.  Ms. Yates begins her analysis with this:

All across the political spectrum, in red states and blue states, from Sen. John Cornyn (R-Tex.) and the Koch brothers to Sen. Patrick Leahy (D-Vt.) and the American Civil Liberties Union, there is broad consensus that the "lock them all up and throw away the key" approach embodied in mandatory minimum drug sentences is counterproductive, negatively affecting our ability to assure the safety of our communities.

Where to start?
With the exception of  a seven year period from 1994-2001, public confidence in government has been dropping almost steadily since Jack Kennedy was President. It is in part for that reason that insistence on strict ethical standards in high-profile and politically-charged cases must be maintained.  As I have argued, public confidence in the Special Counsel's investigation of Donald Trump will be difficult to preserve if the present Counsel, Bob Mueller, stays on despite mounting evidence that he's close friends with his star witness (yet potential subject), Jim Comey.  See my posts here and here.

More evidence of that relationship has emerged in the views of an FBI agent who worked with both men.  The evidence is sufficiently persuasive that CNN's legal analyst has said that Mueller's remaining in his position "could be problematic."  For an outlet as hostile to Trump as CNN, that is strong language indeed.


A:  Because Mueller said so publicly.

In his remarks at the White House ceremony where President Obama introduced Comey to succeed Mueller, Muller said this:

I want to commend the President for the choice of Jim Comey as the next Director of the FBI. 

I have had the opportunity to work with Jim for a number of years in the Department of Justice, and I have found him to be a man of honesty, dedication and integrity.  His experience, his judgment, and his strong sense of duty will benefit not only the Bureau, but the country as a whole. 

Here's the White House transcript

The idea that Mueller could objectively evaluate Comey  --  the chief witness to President Trump's asserted obstruction of justice in the FBI's investigation  --  is, not to put too fine a point on it, nonsensical.

But wait, there's more.

Who Would Replace Mueller?

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I argued in my USA Today op-ed that Bob Mueller is too close to his probable star witness, Jim Comey, to serve as the Special Counsel looking into President Trump's asserted conflict of interest in firing Comey, and discouraging Comey from pursuing an investigation of former National Security Adviser Mike Flynn (assuming arguendo that this happened).  As I noted, under the ethics statutes and regulations that govern officers of the Justice Department, Mueller has a long-term relationship with Comey that "may result in a personal ... conflict of interest, or the appearance thereof" (emphasis added).

While I think this language is sufficient per se to require Mueller to step aside, I also believe that, if there were any doubt, the statute should be given a broad reading in the present climate.  The country is inflamed in ways that seem increasingly to produce rancor and violence.  In this atmosphere, it's imperative that the public see that ethics rules are followed to the letter, thus to promote maximum faith in the outcome of the Special Counsel's investigation no matter what it is.  That is not realistically possible if the chief prosecutor has a years-long friendship with his main witness, and with it a strong, pre-existing opinion of his credibility.  If that happened in the investigation and prosecution of an ordinary citizen, his defense lawyer would raise the roof, and properly so. Trump deserves the same treatment the man on the street would get, not less and not more.

I have been asked who should replace Mueller.  There are several possibilities.

Associate Attorney General Rachel Brand

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Politico has an article with a short profile of Associate Attorney General Rachel Brand. I've known Rachel for years and, like a couple of Harvard Law professors quoted in the article, I'm a big fan of hers.

The occasion for the article is speculation (and that's all it is) that Deputy Attorney General Rod Rosenstein will recuse himself during the Russia investigation because he wrote the memo outlining the reasons then-FBI Director Comey should be replaced. Rachel is next in line at the Department. I tend to think this is so much space-filler, but one way or the other, DOJ benefits from having Rachel at a high level.

A taste of the article:

Brand has enjoyed a glittering career, one that marked her early for a top job at the Justice Department in a Republican administration. Raised with three siblings on an Iowa farm, she graduated from the University of Minnesota in 1995 and, three years later, from Harvard Law School.

She was active in the Federalist Society, the conservative lawyer's group that has long been a talent pool for anyone interested in serving in the administration of a Republican president or on the Supreme Court. Brand was part of the legal team representing Bush in the Florida vote recount in 2000. She went on to be hired as a Supreme Court clerk to Justice Anthony M. Kennedy before joining Bush's Justice Department. There, she helped shepherd the Supreme Court nominations of John Roberts and Samuel Alito.

US Attorney for D.C.

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Orin Kerr has this post at the Volokh Conspiracy on the reportedly forthcoming nomination of Jessie Liu for U.S. Attorney for the District of Columbia.

D.C. is a unique district.  Although Congress provided the District with its own elected government and its own state-court-like court system, it did not provide a locally chosen prosecutor.  The U.S. Attorney prosecutes both the inherently federal offenses in U.S. District Court and the "local" offenses (federal only because D.C. is a federal enclave) in the D.C. Superior Court.

The DoJ ranks of the Trump Administration are slowly filling, but it is taking a long time.
USA Today has published an op-ed I penned arguing that Bob Mueller, though a good man and a public servant of established integrity, is too close to his star witness, Jim Comey, to continue as Special Counsel. 

Under the same ethics rules that prompted the Attorney General to recuse himself from the Russia investigation  --  28 USC 528 and 28 CFR Sec. 45.2  --  Mueller should step aside, and Deputy Attorney General Rod Rosenstein should, if he be so advised, appoint a replacement. Mueller has a longtime relationship with Comey that "may result in a personal...conflict of interest, or the appearance thereof."  

For good reason, especially in a prominent investigation where public trust in government is so clearly at issue, it's more important, not less, that this high standard be rigorously obeyed.

My prior discussion of the case is here.

Executive Privilege or Stonewalling?

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In today's testimony, Attorney General Sessions declined to provide the substance of conversations he had with the President.  There was heated argument about this. The Democrats' point of view was that Sessions was necessarily either invoking executive privilege or simply stonewalling.

Question:  Which was it?

Answer:  Neither.  

It was the most recent iteration of an established policy grounded in separation of powers and used, quite a few times as it happens, by high officers of the Obama Administration.

The Attorney General's Testimony

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Attorney General Jeff Sessions' opening statement today before the Senate IntelligenceCommittee can be found after the break.

My View: Mueller Is Conflicted Out

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UPDATE:  An op-ed I adapted from this post was published today in USAToday. I am linking it in my entry this morning.

It's scarcely news by now that the appointment by Deputy Attorney General Rod Rosenstein of Bob Mueller to be Special Counsel to investigate possible Russian interference in the 2016 election is the Big Story in criminal law circles.

I know Mueller very slightly, having met him only once, when he was Assistant Attorney General for the Criminal Division.  From what I know of his reputation, he is an honest, no-nonsense, effective prosecutor.

Under the present circumstances, however, and not without regret, I have concluded that he cannot continue to serve as Special Counsel.
...we are swimming in dangerous waters.  

I have been unable to think of any reason beyond political assistance to the Attorney General's preferred candidate that Loretta Lynch told the head of the FBI not to call the Bureau's email investigation what is was  --  an investigation.


This was partisan behavior by the sitting head of the Justice Department intended to influence the outcome of the presidential election.  Oddly, I haven't heard any of those currently outraged say beans about it.

I might add that it's not clear whether Ms. Lynch gave this instruction before or after her closeted, tarmac meeting with her candidate's wealthy and well-connected spouse.  I haven't heard too much about that, either.  I wonder how long I should wait for a five-part series in the New York Times.




No More Settlement Slush Funds

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The U.S. Department of Justice issued this press release yesterday.

Attorney General Sessions today issued the attached memo to all Department of Justice components and 94 United States Attorney's Offices prohibiting them from entering into any agreement on behalf of the United States in settlement of federal claims or charges that directs or provides for a settlement payment to non-governmental, third parties that were not directly harmed by the conduct.

"When the federal government settles a case against a corporate wrongdoer, any settlement funds should go first to the victims and then to the American people-- not to bankroll third-party special interest groups or the political friends of whoever is in power," said Attorney General Jeff Sessions.

Darn.  I was hoping that now that the Republicans are in, DoJ would prosecute some deep-pocketed wrongdoers and then settle with them on the condition that they shower CJLF with megabucks.  Can't you just picture our opponents turning purple with outrage?  Well, they would actually be right for once.  But it's not going to happen because AG Sessions is a better, more ethical man than former AG Holder.

Aruna Viswanatha has this article in the WSJ.

FBI Director Candidates

A couple of developments on the search for a new FBI Director, as reported in the WSJ:

Rebecca Ballhaus reports:

Former Sen. Joe Lieberman, once a leading contender for FBI director, on Thursday withdrew himself from consideration for the post in a letter to President Donald Trump, citing the appearance of a conflict of interest.

The former Connecticut senator and Democratic vice presidential candidate works at the same law firm as Marc Kasowitz, whom Mr. Trump retained earlier this week to serve on a team of private attorneys representing him in the broad special-counsel probe of Russia's alleged meddling in the 2016 election. "I do believe it would be best to avoid any appearance of a conflict of interest, given my role as senior counsel in the law firm of which Marc is the senior partner," Mr. Lieberman wrote in the letter dated Wednesday ....

Del Quentin Wilber reports:

Top Justice Department officials recently interviewed a former U.S. attorney to be the next FBI director, as the Trump administration continues its search for someone to lead the nation's top law enforcement agency.

That search has been less public during President Donald Trump's current overseas trip, but Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein spoke last week with Ken Wainstein, a top national security official in the George W. Bush administration, according to a person familiar with the selection process.

No FBI Pick For Now

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Darlene Superville reports for AP:

After saying he was "very close" to naming a new FBI director, President Donald Trump boarded Air Force One on Friday for his first foreign trip without making any comment about the future leadership of the law enforcement agency.

The White House said earlier in the day that no announcement would be made.

The Washington Examiner has this editorial:

President Trump's last minute decision to put off the selection of a new FBI director until after his overseas trip is a good sign, perhaps even an indication that he's learned something and avoided making a mistake.

In the last two days, the strange choice of former Democratic Sen. Joe Lieberman had been floated as a trial balloon. It seemed like a very bad idea, and perhaps Trump has ultimately decided to deflate it. The choice of the 75-year-old Lieberman -- who, remember, addressed the 2008 Republican convention, and also recently wrote a letter of recommendation for Jeff Sessions as attorney general -- was never going to placate Democrats, if that's what was intended.

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