Recently in USDoJ Category

William McGurn has this column in the WSJ:

In the past few days, the calls for a special counsel to look into the FBI and Justice Department have grown louder. Sens. Chuck Grassley and Lindsey Graham want one. So do Reps. Bob Goodlatte, Mark Meadows, Jim Jordan and others. Attorney General Jeff Sessions is thinking about it. Meanwhile, President Trump's deputy press secretary has told reporters that the president's lawyers want one too.

It's a tempting proposition. Republicans are plagued by a special counsel whose mere existence calls into question the legitimacy of the last election. Why shouldn't they inflict the same menace on Mr. Trump's opponents? The answer is that a special counsel is not only unnecessary but counterproductive.

McCabe Departs

Aruna Viswanatha reports for the WSJ:

Deputy FBI Director Andrew McCabe told colleagues Monday he would leave his post effective immediately, according to a person familiar with the matter, after becoming a lightning rod for criticism from President Donald Trump and some congressional Republicans.

Mr. McCabe plans to take "terminal leave"--using leftover vacation time--until he is eligible in March to retire from the Federal Bureau of Investigation, said the person.
*      *      *
The White House said Mr. Trump played no role in Mr. McCabe's decision to step down. White House press secretary Sarah Huckabee Sanders said the president wasn't part of the "decision-making process" with respect to Mr. McCabe's departure.
*      *      *
Mr. McCabe first came under fire from Republicans in 2016 as a result of his supervisory role in the FBI investigation into former Democratic presidential candidate Hillary Clinton's email server.

The alleged conflict of interest came after his wife, Dr. Jill McCabe, ran for Virginia state senate with financial support from the political organization of then- Virginia Gov. Terry McAuliffe, a Democrat and longtime ally of Bill and Hillary Clinton.

Special Counsel Mission Creep

The worst abuses of past independent and special counsels in USDoJ have resulted from investigations ranging far afield of the issue that prompted an appointment in the first place.  Time and again, in administrations of both parties, we saw these specially appointed attorneys come up with nothing to prosecute on the original issue and then go after someone for something only tangentially related.  After both parties had been burned in this way, the Independent Counsel Law was allowed to expire, unmourned, with no real effort to renew it.

So when it came time for Deputy Attorney General Rod Rosenstein to appoint a special counsel, he should have learned from history, not repeated it, and strictly limited the special counsel's scope to the matters making an appointment necessary.  The special counsel should be looking into allegations of "the Russian government's efforts to interfere in the 2016 presidential election," as the lead paragraph of the appointment order says, and nothing else.  Anything else he discovers should be referred to Main Justice.  Instead, Mr. Rosenstein did just the opposite, giving Mr. Mueller a broad sweep including "matters that ... may arise directly from the investigation," a potentially limitless scope.

Sure enough, we now have reports that Mr. Mueller is intensely interested in events occurring after President Trump took office, including the firing of policy-making officers of the executive branch.  There are two reasons he should not be investigating these matters.
Readers might think that I've finally gone over the edge by posting that the Justice Department can overrule the Supreme Court's holding in Miranda that, in order effectively to preserve the Fifth Amendment, police must give a specific set of warnings to a suspect in custody, on pain that any ensuing statement he gives will be suppressed even if the facts show it was voluntary.

And yes, I would have thought the idea of DOJ overruling SCOTUS was bonkers before I read the Volokh Conspiracy post by Prof. Will Baude of Chicago.  Prof. Baude, by the way, is widely and correctly recognized to be a brilliant mind and one of the future stars of legal academia.  He is also, I should add, not a captive of the Leftist Bubble currently ruling the roost there, a fair-minded and eclectic thinker, and a casual friend of mine.

His Volokh Conspiracy entry dealing with marijuana enforcement policy does not directly say that DOJ can overrule Miranda, to be sure, but his analysis leaves no doubt about it.

DOJ Set to Increase Use of the Death Penalty

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Some of my law professor friends (including Doug Berman, whom I had the pleasure to see at the AALS convention in San Diego a few days ago) have been asking when Attorney General Sessions is going to make more of a push for the death penalty.  The answer came today from, among other outlets, the Wall Street Journal:

"The Justice Department has agreed to seek the federal death penalty in at least two murder cases, in what officials say is the first sign of a heightened effort under Attorney General Jeff Sessions to use capital punishment to further crack down on violent crime. In a decision made public Monday, Mr. Sessions authorized federal prosecutors to seek the death penalty against Billy Arnold, who is charged with killing two rival gang members in Detroit. The decision followed the first death-penalty authorization under Mr. Sessions, made public Dec. 19, when he cleared prosecutors in Orlando to seek a death sentence against Jarvis Wayne Madison, who is charged with fatally shooting his estranged wife in 2016. The Justice Department is also considering seeking death sentences against Sayfullo Saipov, accused of killing eight people in November by driving a truck onto a Manhattan bike lane, and against two defendants in the 2016 slaying of two teenage girls by MS-13 gang members on Long Island, outside of New York City, according to people familiar with the deliberations. Mr. Sessions views the death penalty as a 'valuable tool in the tool belt,' according to a senior Justice Department official. The official said the death penalty isn't only a deterrent, but also a 'punishment for the most heinous crimes prohibited under federal law.' The Justice Department under President Donald Trump expects to authorize more death penalty cases than the previous administration did, the official said." 

Because federal criminal jurisdiction is limited, certainly compared to the states, increased willingness to use the death penalty in federal law will only slightly increase the number of capital cases.  Its principal significance is signalling a welcome new direction from the top..
Special Counsels, and Independent Counsels before them, were created because the Nixon era showed us that the public cannot attain the high degree of confidence in investigations of powerful officials, particularly the President, that is needed to entrust those investigations to the Justice Department.  DOJ's highest officers are, of course, themselves politically appointed, and thus accountable, in a potentially unwholesome way, to the man in the Oval Office.

The question has now been raised whether this tradeoff  --  an increase in independence bought at the price of a decrease in political accountability  --  has its own problems.  The answer is:  Sure it does.  Tradeoffs always do.  This is why they're called tradeoffs rather than windfalls.

The Special Counsel tradeoff is an important question that has not received sufficient discussion, cf. Justice Scalia's dissent in Morrison v. Olson. But another question has surfaced as well, one we should have expected:  Whether, in avoiding a political slant in one direction, the appointment of a Special Counsel has a natural momentum to create a slant in the other.  That question is usefully explored in this morning's USA Today op-ed.

Preview:  The op-ed's answer is "yes."  I agree, but would suggest a remedy different from the one proposed.

Attorney General Sessions Speaks at Georgetown

The Washington Post carries this article about Attorney General Sessions' talk today at the school where I'm an adjunct professor, Georgetown University Law Center.  The talk was about free speech on campus.

There are a dozen different things to be said about this.  I will content myself with four.

First, Georgetown is a private university and may invite whomever it wants to appear on campus and whomever it wants to be in the audience.  In today's climate, Georgetown deserves credit for inviting Jeff Sessions (although it should scarcely be remarkable that a law school, of all places, would invite the Attorney General of the United States).

Second, there are complaints that not everyone who would have liked to be in the audience was accommodated.  Well, gosh  --  I would have liked to attend for sure, and I teach there, but I wasn't invited either.  Good for the University that it gave my potential seat to a student.  The fact that not everyone can fit in the room should be too obvious for words, but apparently it isn't.  It was, you see, all a conservative plot.

Third, the event was hosted by my friend and colleague, the brilliant libertarian leader Prof. Randy Barnett.  Randy argued the Supreme Court case against the government's prohibition of medical marijuana in Gonzales v. Raich, and thus is an opponent of Sessions on one of today's key criminal justice issues.  What a tribute to Randy that he offered a platform to a man with whom he has such a major disagreement, knowing that he would take plenty of heat for it to boot.

Fourth, some protesters brought signs saying "Hate Speech Is Not Free Speech." This is arrant nonsense, first because the AG said nothing that a rational person could characterize as hate; and second because hate speech most certainly is free speech, as these law students, before almost anyone else, surely must know.  See, e.g., the ACLU's famous defense of Nazis marching in Skokie, Illinois.

The New Solicitor General

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Marcia Coyle and Mike Scarcella have this article in the National Law Journal on recently confirmed U.S. Solicitor General Noel Francisco.  Free registration is required for access.

News Scan

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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.

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