Recently in USDoJ Category

A Ninth Circuit panel today decided City of Los Angeles v. Barr, No. 18-56292, holding that the statute authorizing the federal Byrne Justice Assistance Grants did not empower DOJ to condition the grants on local law enforcement giving DHS notice that a detained alien would be released or giving DHS agents access to detained aliens. This is statutory interpretation, not constitutional law.

We conclude that the 2006 amendment to § 10102(a)(6) confirms that the Attorney General and the Assistant AG through delegation have the authority to impose special conditions on all grants and determine priority purposes for formula grants, as those terms are properly circumscribed. The notice and access conditions are not special conditions placed on grants to grantees that exhibit certain risk factors or have idiosyncratic issues that must be addressed individually. Nor are they among the statutorily recognized purposes of a Byrne JAG award as set out in § 10152(a). Therefore, DOJ lacked statutory authority to impose them under §10102(a)(6).
The panel divided 2-1 over how much authority the statute actually does give DOJ, however.
NYLS Prof. Robert Blecker has this op-ed at Fox News with the above title.

Attorney General William Barr should be applauded for announcing Thursday that the federal government will resume executing convicted murderers on death row for the first time since 2003, beginning with five vicious killers in December and January.
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While the legislation Barr refers to permits a punishment of death, it doesn't compel it. We rely on the Justice Department to seek the death penalty only for the worst of the worst murderers - those who most clearly deserve to die. And we rely on juries in each individual murder case to act as the moral filter and conscience of the community to decide if the death penalty is warranted.

Reviewing the despicable crimes of the five men scheduled to be executed, we can safely say that the Justice Department has exercised its prerogative wisely.
USDOJ issued this press release today.

Attorney General William P. Barr has directed the Federal Bureau of Prisons (BOP) to adopt a proposed Addendum to the Federal Execution Protocol--clearing the way for the federal government to resume capital punishment after a nearly two decade lapse, and bringing justice to victims of the most horrific crimes.  The Attorney General has further directed the Acting Director of the BOP, Hugh Hurwitz, to schedule the executions of five death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society--children and the elderly.
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The Federal Execution Protocol Addendum, which closely mirrors protocols utilized by several states, including currently Georgia, Missouri, and Texas, replaces the three-drug procedure previously used in federal executions with a single drug--pentobarbital.  Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment.

Does the federal government have a source of pentobarbital? Apparently so. It should order a big batch and share it with the states, eliminating the problematic use of non-barbiturates in three-drug protocols.

US DAG Confirmed

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The Senate yesterday confirmed Deputy Transportation Secretary Jeffrey Rosen to be the new Deputy Attorney General. Sadie Gurman and Andrew Duehren have this report in the WSJ.
Debra Saunders reports for the Las Vegas Review-Journal:

WASHINGTON -- Can Attorney General William Barr thumb his nose at Congress and get away with it? Can the nation's top lawman refuse to honor a House Judiciary Committee subpoena for an unredacted version of Special Counsel Robert Mueller's report and not pay a penalty?

In 2012, then-Attorney General Eric Holder did just that. Holder defied a congressional subpoena to furnish documents about "Fast and Furious," a program to attempt to trace gun trafficking along the Southwest border that went awry. The House held Holder in contempt, but since Holder declined to indict himself, the controversy faded. Holder resigned in 2015.

The Truth about the Mueller Report

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John Malcolm of the Heritage Foundation has this article in the National Interest with the above title.
The Crime Victims Rights Act, 18 U.S.C. § 3771, is a routinely violated law. It confers rights on victims in federal criminal cases and in federal habeas corpus cases challenging state convictions, but victims rarely have their own attorneys in these matters, so there is generally no one to speak up for the victims in cases where the prosecutor chooses not to.

A particularly egregious violation occurred in the case of Florida's billionaire serial sex offender Jeffrey Epstein. The U.S. Attorney reached an agreement not to prosecute Epstein and leave him to state prosecution. That might not be so bad in itself, as the crimes are primarily of the type that should be prosecuted in state court. The "dual sovereignty" doctrine permits prosecution by both sovereigns for the same act, but it should be used sparingly. In this case, though, the feds let him off merely for reaching a state plea deal with a shockingly low sentence. Jacob Gershman reports for the WSJ.

Under the nonprosecution agreement with Mr. Epstein, who had been the target of a Federal Bureau of Investigation probe, federal prosecutors promised not to bring charges against him in Florida if, among other conditions, he pleaded guilty to two state prostitution-related felonies and served a 13-month prison sentence with work-release privileges that let him spend much of his time outside prison.
During the time this agreement was being negotiated, the federal prosecutors kept the victims completely in the dark. They even sent them letters saying that the case was still being investigated and asked them to be patient even after they had inked a deal disposing of the case.  See also this story at Bloomberg Law.
 
What can victims do about it?

AG Confirmation Hearing

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CNN has this partial transcript of today's Senate Judiciary Confirmation for Attorney General nominee William Barr. Here is Senator Grassley's question on criminal justice "reform" (i.e., softening):

The Attorney General

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The U.S. Supreme Court today brushed aside Thomas Goldstein's clever move to place the legitimacy of Matthew Whitaker as Acting Attorney General before the court through a normally routine motion to substitute a successor for a party appearing in his official capacity. In Michaels v. United States, No. 18-496, a petition challenging the federal ban on possession of firearms by convicted felons, Goldstein moved to substitute Rod Rosenstein, rather than Matthew Whitaker, for departed Attorney General Jeff Sessions, the nominal lead defendant.

No dice. In today's order list, the Court denied the motion and the certiorari petition without comment or noted dissent.

The question will likely be moot very soon. William Barr's confirmation hearing is tomorrow. His prepared remarks have been released. Sadie Gurman has this story in the WSJ. The part about the Mueller probe will be the main topic of conversation amongst the chattering classes. I am more interested in his priorities for DoJ generally.

First, we must continue the progress we have made on violent crime while, at the same time, recognizing the changes that have occurred since I last served as Attorney General. Then, the Nation was suffering from the highest violent crime rate in our history. My priority was to protect the public and attack those soaring crime rates by targeting chronic violent offenders and gangs. The crime rate has substantially fallen since 1992. The recently passed First Step Act, which I intend to diligently implement if confirmed, recognizes the progress we have made over the past three decades. Like Attorney General Sessions, I believe we must keep up the pressure on chronic, violent criminals. We cannot allow the progress we have made to be reversed. As Attorney General, I will continue to give priority to the joint efforts with our state and local partners to combat violent crime.
That sounds like the "law-and-order President" has indeed given us another law-and-order Attorney General. While he tips his hat to the Faux Pas Act, the main point is a determination to continue the progress against crime that the get-tough policy of his prior tenure helped bring about. "We cannot allow the progress we have made to be reversed." Bull's-eye. The acknowledgement to departed AG Sessions, a man unfairly tarred and largely right on the main issues, is a classy touch and a good sign.

It's a good thing former Majority Leader Harry Reid nuked the filibuster for executive nominations.

Attorney General Barr, Take 2

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Grover Cleveland was President twice. Donald Rumsfeld was Secretary of Defense twice. Now William Barr is poised to be Attorney General for a second time.

The let-em-all-loose crowd doesn't like Mr. Barr's prefatory note to a 1992 DoJ report titled The Case for More Incarceration.  Mr. Barr noted, "there is no better way to reduce crime than to identify, target, and incapacitate those hardened criminals who commit staggering numbers of violent crimes whenever they are on the streets."

The violent crime rate in 1992 was 757.7 per 100,000 population. The property crime rate was 4903.7. The numbers for 2017 are 394.0 and 2362.2 respectively. That's a drop of about half in both statistics. Stand by for attacks on Mr. Barr for supporting a policy that "failed." We could use a lot more such "failures."

Senator McConnell, I wish you and your colleagues a Merry Christmas and a Happy New Year.  Take a recess.
Jonathan Turley has this post with the above title at his eponymous blog.

Update (Nov. 14): The Office of Legal Counsel came to the same conclusion.
Jeff Sessions could have been a great Attorney General. Unfortunately, he made a serious mistake in drafting an overly broad recusal from what became the Mueller probe. That probe has since suffered from exactly the kind of "mission creep" that caused both parties to abandon the old independent counsel law. DAG Rosenstein did nothing about it, and AG Sessions could not. President Trump has allowed himself to be obsessed with it, and that brought us, unfortunately, to where we are now. So where do we go from here?

If Mr. Trump is serious about being the law-and-order President he promised to be, then the departure of Mr. Sessions should not mean the departure of his strong law enforcement agenda. We need an AG who will be a strong leader at the Department of Justice. Just as importantly, the new AG must have the determination and the fortitude to stand up to the attacks on law enforcement and the mad rush to release as many criminals as possible regardless of the consequences to innocent people.

One good screening criterion would be a potential nominee's view of the Faux Pas Act. Anyone who cannot or will not see that this is a reckless measure for indiscriminate releases under a thin veneer of rehabilitation is not suited to be our nation's chief law enforcement officer.

Update: Heather MacDonald has this commentary at the City Journal.

Acting Attorney General

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Aruna Viswanatha, Michael C. Bender and Sadie Gurman report for the WSJ:

Deputy Attorney General Rod Rosenstein is set to meet with President Trump Thursday to discuss "recent news stories," the White House said Monday, amid conflicting reports about whether Mr. Rosenstein is set to depart.

Mr. Rosenstein visited the White House Monday morning, and people close to him said he expected to be fired. White House chief of staff John Kelly told officials in the West Wing, however, that Mr. Rosenstein resigned during a meeting late last week, a White House official said.
If Mr. Rosenstein does depart (regardless of whether he jumps or is pushed) who is Acting Attorney General on matters in which the Attorney General is recused? Like, for instance, the Russia-campaign probe?

Strzok Fired

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Del Quentin Wilber and Sadie Gurman report for the WSJ:

The Federal Bureau of Investigation has fired agent Peter Strzok, whose anti-Donald Trump text messages prompted sharp criticism over his handling of two politically charged investigations.

His attorney, Aitan Goelman, said Mr. Strzok was fired Friday. The FBI didn't immediately respond to requests for comment.

Mr. Strzok was the lead agent on the FBI probe into Hillary Clinton's use of a private email server as secretary of state. He later served as the lead agent in the early days of special counsel Robert Mueller's inquiry into Russian interference in the 2016 election.

Mr. Mueller removed him from the probe a year ago, after the Justice Department inspector general uncovered Mr. Strzok's exchange of tens of thousands of text messages from 2015 through 2017 with a former FBI lawyer, Lisa Page, with whom he was having an affair.

Mr. Strzok testified in July on Capitol Hill that he never permitted his views to affect his official actions, a stance Republicans contested.
The U.S. Senate today confirmed Brian Benczkowski as head of the criminal division of the Department of Justice, Sadie Gurman reports for the WSJ.

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