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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

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.
Del Quentin Wilber and Aruna Viswanatha report for the WSJ:

Former FBI Director Robert Mueller III was appointed as special counsel to oversee the FBI investigation of the Russian government's efforts to influence the 2016 election, the Justice Department said.

Deputy Attorney General Rod Rosenstein announced the appointment because Attorney General Jeff Sessions recused himself from any investigation related to the 2016 race. Mr. Rosenstein said in a statement that "I determined that it is in the public interest for me to exercise my authority and appoint a Special Counsel to assume responsibility of this matter."

Mr. Rosenstein, who signed the order on Wednesday, cautioned that his decision wasn't the result of a "finding that crimes have been committed or that any prosecution is warranted."
Update:  The DoJ press release is here. The appointment order is here.

FBI Director Candidates

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The WSJ reports:

President Donald Trump is meeting on Wednesday with four candidates to lead the Federal Bureau of Investigation, including Acting Director Andrew McCabe and former Sen. Joe Lieberman, the White House said Wednesday.

...  Press secretary Sean Spicer said the other two candidates Mr. Trump will meet with are former FBI official Richard McFeely and former Oklahoma Gov. Frank Keating.

Sen. Lieberman would be a politically interesting choice, but he has neither law enforcement nor prosecutorial experience.  He was Attorney General of Connecticut, but as I understand the way responsibilities are divided in Connecticut, that isn't really a prosecution office.  Further, even Democrats say that this is not the time, if there is any, to appoint a politician to this post, even one of their own.  Sen. John Cornyn and Rep. Trey Gowdy have already withdrawn from consideration.

I like the idea of picking someone "up from the ranks," though I don't know enough about Mr. McFeely to make an endorsement.

Open Jobs at Justice

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The WSJ has this feature regarding the filling of Senate-confirmation positions at USDoJ.  There are 2 filled, 4 pending, and 201 without nominees.

Solicitor General Hearing

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Tony Mauro reports for the NLJ (registration required) on the confirmation hearing for Solicitor General nominee Noel Francisco.  On one particularly important point: 

Asked by committee chairman Sen. Chuck Grassley, R-Iowa, if he would be able to defend acts of Congress with which he personally disagreed, Francisco replied, "Absolutely, senator." He qualified the answer slightly, as past solicitors general have done, pledging he would defend statutes "whenever a reasonable argument can be made" in their favor, except for "the very narrow category" of laws that improperly impinge on the president's powers under Article II of the Constitution.

"Reasonable argument" has been defined with unreasonable narrowness by some SG's.  The most egregious case was Dickerson v. United States, regarding the statute that challenged the Miranda rule.  Reasonable arguments could be made defending that statute, and Bill, I, Paul Cassell, and the Fourth Circuit, among others, all made such arguments, but the Clinton Administration SG attacked the statute instead of defending it.

Acting FBI Director

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Nomination and confirmation of a new director for the FBI may take some time.  Del Quentin Wilber, Brett Forrest and Rebecca Ballhaus report for the WSJ on interviews for an acting director:

The five candidates for the temporary post, all current FBI or intelligence officials, began appearing at the Justice Department for their interviews before 10 a.m. Wednesday, less than 24 hours after Mr. Comey's unexpected removal. They included FBI supervisors in Richmond, Va., and Chicago, as well as Mr. Comey's former deputy, Andrew McCabe, who became acting FBI director shortly after Mr. Comey's firing.

Whoever is named interim director will take control of an agency of 13,000 agents and 35,000 employees, and could serve in that position for months until a permanent successor is named and confirmed by the Senate, which is likely to be an intensive and hard-fought process. The temporary chief will immediately find himself at the epicenter of the politically fraught investigation into potential collusion between Donald Trump's presidential campaign and the Kremlin.
The person named acting director cannot, by law, be the nominee for director.
Callum Borchers has this post at The Fix, the WaPo's political blog, titled "Want a special prosecutor to replace James Comey? History might change your mind."

With James B. Comey out as FBI director and President Trump holding the power to nominate his replacement, calls for a special prosecutor to take over the bureau's investigation of Russian election meddling are all the rage. Dozens of Senate Democrats have said they want an independent probe to determine whether Trump's campaign colluded with Russia.

The idea makes sense, in theory. In practice, some investigations headed by special prosecutors have rung up huge tabs while producing modest results.

Comey Fired

New Deputy AG Rod Rosenstein recommended that FBI Director James Comey be dismissed, and the Attorney General and the President have accepted that recommendation.  Christine Wang reports for CNBC:

In a memorandum titled "Restoring public confidence in the FBI," Rosenstein said he couldn't defend Comey's handling of the investigation into Hillary Clinton's emails.

"The Director was wrong to usurp the Attorney General's authority on July 5, 2016, and announce his conclusion that the case should be closed without prosecution. It is not the function of the Director to make such an announcement," the deputy attorney general said.

Last summer, Comey said "no charges are appropriate" in the FBI's investigation of Clinton.

"Although there is evidence of potential violations regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case," he said in July.

Rosenstein said that the dismissed FBI director compounded the error when he "ignored another longstanding principle: we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation."

Update: Finally found the full text across the pond at the Independent in London.
Brent Kendall and Jess Bravin have this article at the WSJ on Justice Gorsuch's initial days at the Supreme Court.  The title of this post comes from the article subtitle.  About all they have to report so far, of course, is style during oral argument.

While the new justice's future votes and opinions remain to be seen, his early style suggests, at minimum, that he will be not just a conservative justice but a forceful one, unafraid to articulate potentially bold approaches that may or may not attract support from his colleagues.

His sole opportunity to take a meaningful action so far came off the bench, when he sided with fellow conservative justices to let Arkansas execute three inmates, though he issued no opinion. The next chance to take Justice Gorsuch's measure comes when the court delivers new opinions in the coming weeks. He will have the opportunity to author one, perhaps two, majority decisions--and as many concurring and dissenting opinions as he is eager to write.

By "the coming weeks" I assume they mean through the end of the term, which could be as late as early July.

The Sanctuary City Case

Within days of his inauguration, President Trump signed Executive Order 13768.  Section 9 of that order addressed so-called "sanctuary cities."  The header paragraph and subdivision (a) read (emphasis added):

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
This section has been challenged in court as illegal and unconstitutional.

If it occurs to you that a direction from the chief executive to his subordinates that is expressly limited by its terms to actions "consistent with law" cannot possibly be illegal, congratulations, you understand law better than a federal district judge.

Deputy AG Confirmed

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Yesterday the U.S. Senate confirmed the nomination of Rod Rosenstein to be Deputy Attorney General of the United States. The vote was 94-6, with Senators Blumenthal, Booker, Cortez Masto, Gillibrand, Harris, and Warren casting the dissenting votes. 

One can only wonder if there is anyone President Trump could possibly have nominated whom these six would have voted for.  Were they expecting him to renominate Sally Yates?

Even so, in the present poisonous atmosphere 94 votes is a very good start, and we congratulate Mr. Rosenstein and wish him well in a tough job.
Sentencing Law and Policy has an entry today about the Sessions era at the Justice Department.  It quotes The Hill magazine, which starts off:

Attorney General Jeff Sessions has brought sweeping change to the Department of Justice. In just two months as the nation's top cop, Sessions has moved quickly to overhaul the policies and priorities set by the Obama administration....

Alex Whiting, faculty co-director of the Criminal Justice Policy Program at Harvard Law School, said it appears Sessions is resurrecting the tough on crime policies last seen during the George W. Bush administration.  "Obama moved away from that approach, and I think in the criminal justice world there seemed to be a consensus between the right and left that those policies, those rigid policies of the war on drugs and trying to get the highest sentence all the time, had failed," he said.  "I don't know if he is really going to be able to persuade the department to follow his lead on this."

Where to start?

The headline of this post is taken from today's excellent Wall Street Journal piece by Jason Riley, with whom I spoke on Monday.  I had known from reading his work that he understands what's actually going on out there, but now, having had the chance to talk to him, I am doubly impressed.

This is what our liberal friends don't get:  The antagonists are not the police and the Constitution.  The antagonists are police and criminals.  When you weaken the former, you strengthen the latter.  If common sense were not enough to make this clear, Baltimore's shocking, and ongoing, murder spree should, 

The attacks on Jeff Sessions as endangering African Americans are inside-out. Blacks are endangered  --  indeed they are in mortal danger  --  because of rising crime, and particularly rising murder rates.  In dozens of our biggest cities, Baltimore included, this is the real Obama "legacy."  It will save lives if Attorney General Sessions is able to make good on his determination to turn this around.
As Kent noted here, a liberal district judge in Baltimore rushed to implement a federal consent degree regulating the Baltimore police department notwithstanding that our newly-constituted Justice Department asked for time to review it.

Few doubt that there are sometimes abuses of police power that require federal intervention.  I was part of such intervention when I joined DOJ, and it wasn't just a consent decree, either.  But the ideological slant of the consent decrees written by Obama's Justice Department is not what the Framers had in mind when they sharply cabined federal authority, and made policing almost entirely (some say 100%) a local matter.

Sheriff David Clarke and I are quoted extensively in this LifeZette article explaining why consent degrees are problematic.  The main reason, as I noted, is that they take root in a distorted, pre-fab view that sees cops as hoodlums and criminals as victims.

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