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Defending Jeff Sessions:  While we have posted several times in support of Attorney General Jeff Sessions on this blog over the past several months, Heather MacDonald does a far more thorough job in her piece in the National Review.  The contrast between Sessions and Obama Attorney General Eric Holder is particularly enlightening.

Why Sessions Recused Himself

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The Wall Street Journal explains as well as anyone why Attorney General Sessions was right to recuse himself from the Russia probe.  Its piece is here.  I will make no attempt to improve on it; I'll only repeat that fidelity to law means adhering to both its letter and spirit.

  
Sessions has done himself and DOJ proud by taking the action he did, and by the restraint and dignity he has shown in the face of the recent attacks on him.

I would  contrast this with Eric Holder's fuming claim that the American people are "a nation of cowards" for turning away from a discussion of race,  Mr. Holder's remark had two principal problems, to wit, that the American people are not cowards, and that we talk about race from morning to night, then have at it again the next day.

But don't get me started.
The President criticized Attorney General Sessions for the third consecutive day today. The President's quite explicit disappointment with Sessions has led many to believe the Attorney General's days on the job are numbered.

I believe there are grounds to think otherwise.
Among the planks of the platform President Trump was elected on was his promise to be a law-and-order President.  Unlike some of the other planks, that is a promise he has delivered on so far.  Two of Mr. Trump's most important accomplishments six months into his term are the appointments of Neil Gorsuch to the Supreme Court and Jeff Sessions as Attorney General.

Yet strangely, Mr. Trump is having second thoughts about the AG appointment, obsessively focusing on the Russia investigation recusal.  Third thoughts are in order.  The Department of Justice is much bigger than that one investigation.  Broader and more lasting decisions are at stake.

As we have discussed many times on this blog, American criminal justice has come a long way since the dark days of the 1980s and early 1990s.  Simply put, getting tough worked.  But that success is in peril.  George Soros and the Koch brothers have been spreading their money on the same side of the ledger for once.  The dangerous myth that our prisons are mostly full of people imprisoned for possession of one joint whom we can safely release has gained far more currency than it deserves.  Jeff Sessions resisted this tide in the Senate, and he continues to resist it at the Department of Justice.  The chances of replacing him with anyone nearly as good are remote.

The political pressure to appoint a special counsel for the Russia kerfuffle was irresistible, and one would have been appointed regardless of whether the AG was recused.  Yet Mr. Trump continues to focus on the single matter that involves him personally rather than the broader issues of greater concern to the ordinary folks who make up his base and put him in office. 

It's not all about you, Mr. President.  There is blood in the streets already, and how much more there will be depends to a considerable extent on how well you keep your promise to be a law-and-order President.  You took an important first step in appointing a law-and-order Attorney General.  Don't go wobbly on us now.

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.

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