Chris Marschner, who has had several, scored another Comment of the Day today with his reflections on the strange nature of “obstruction of justice ” charges, when justice would in fact be for no charges to be brought at all.
He was focusing on #3 in today’s warm-up, which discussed yesterday’s “resistance” theory that allegations that the President wanted to fire the Special Prosecutor (but didn’t) prove that he was trying to obstruct justice when he fired James Comey, who so, so deserved it.
I see unmistakable signs that the “resistance” is losing its already tenuous grip on reality, and is increasingly yielding the raw hate and fury that long ago supplanted any rational criticism of Donald Trump. Consider has-been Leftist documentarian Michael Moore, who with fellow progressive performers Mark Ruffalo, Whoopi Goldberg, Rosie Perez and Cynthia Nixon, who have to do something between jobs, is pushing Monday’s Counter-State of the Union , which is only slightly more sensible than the “scream pointlessly at the sky” event. Remarkably, among Moore, Whoopie, Rosie, Cynthia and Mark there isn’t a single political science, history, economics, or government major. In fact, there isn’t a single college degree of any kind between them, or business, government or executive experience of any kind.
Michael Moore, speaking on behalf of MoveOn.org (Do the Time’s Up and #MeToo crowd recall that Move-On was spawned to protest Bill Clinton facing accountability for his cover-up of sexual misconduct? Nah.), sent out an email that read in part, before the fundraising pitch,
This situation is a nightmare. And the only reason that things aren’t FAR WORSE than they already are is that millions of us have come together to engage in our democracy, resist, and organize.
But our problems go far beyond one sociopath president. The mission that we are on and the work that we must do is to tear down the rigged system that produced Trump in the first place. We must imagine the America that we want to live in. We must create the post-Trump America.
And this is actually possible: The fierce, determined Resistance movement that began after Trump’s election could create an avalanche at the polls this November. Together, we can stop Trump and the GOP and begin the work of creating the country that we imagined.
The country the Moore imagined was called the USSR. But I digress.
Here is Chris Marschner’s Comment of the Day on the post, Morning Ethics Warm-Up: 1/27/2018: “If You Want It, Here’s How To Get It” Edition:
On point 3, better build bigger prisons when just thinking about something is considered a crime.
With that said, logic would dictate that in order for justice to be obstructed one must prove that justice was denied or delayed. Creating perjury traps when one cannot find evidence of wrongdoing could also be considered obstructing justice by creating conditions that should not otherwise exist.
If in fact no evidence can be presented to show a conspiracy to coordinate an effort with the Russians then how can one be charged with obstruction. Therefore, how could one obstruct a prosecution that cannot obtain a conviction on hard evidence. Obviously, if one can prove that the target acted to destroy evidence or compel perjury it would be obstruction. In this case, Trump cannot destroy an investigation because someone else will simply take his place. Obstruction should only be added to charges and not as stand alone charges except when you can prove that the obstructing act was a stand alone crime.
Justice is an ideal to be worked toward, not a federal department. Justice requires fairness to both sides.
Using Richard Painter logic, theoretically, demands for recusals could also be considered obstruction because it demands that one side that may give an appearance of conflict be removed from the process. How is that different than removing a lead investigator who too may have a conflict for other reasons?
Moreover, conspiring to not investigate a target as diligently because said target may one day be your boss should constitute obstruction of justice as well as a breach of fiduciary duty.
Ethics Alarms 
Thnx
All these concepts of “justice”, “fairness”, and “good faith” are so archaic, that they’re weighing down Progress! Like that guy said, he saw the future and it works, we should look to the future and bring back Troika courts! And instead of elections we’ll have behind-the-curtain party faction battles, where winners rule, and losers become committee leaders in Alaska at best, or they are deemed British, I mean Russian spies, and are dealt with swiftly at worst. No rational being would object to this remarkable system! And if they do, they’re probably crazy, and we’ll send them to the nearest facility for the treatment they need.
“Trump cannot destroy an investigation because someone else will simply take his place.”
Not sure what you mean here. Will someone take Trump’s place or Muller’s place?
It means firing someone doesn’t impede an investigation, since the personnel is fungible, which it is. Changing investigators isn’t obstruction—I haven’t been able to find any case where it was found so. The theory is a desperate stretch.
Shutting down an investigation would not be obstruction, either.
Yes, it would be.
Not if the person shutting down the investigation is the boss of the investigators.
I should have worded that better. I misused the pronoun reference.
Trump cannot destroy an investigation by firing Mueller because someone else will be appointed to lead it.
What if he simply eliminates the post?
“On point 3, better build bigger prisons when just thinking about something is considered a crime.”
In a USSR-style government, which Jack pointed out above is apparently what Moore and his fellow travelers want, there’s no need for bigger prisons. They release all of the so-called political prisoners – those disproportionately-convicted blacks, the minor drug peddlers and the prostitutes – and you have sufficient room for those who don’t conform to the ideals of the American Soviet Socialist Republic. The American gulags will be full of criminals, of course, but also those outspoken critics of gay marriage, climate change, kangaroo courts and the regime’s definition of democracy.
They’ll just be replacing who is in prison.
Because you only have to imprison the most radical of American traditionalists, the rest – the ones who just want to live their lives, raise their children and die in peace – can simply be cowed into submission. Freedom of Expression, Worship and Association will theoretically still exist in the revised US Constitution but they will mean exactly what they did in the Soviet Union – freedom to express the Party Line.
In reality, religious proselytization will be punished, especially to children who will be forced into a Young Pioneers-style organization where they will be spoon-fed the Leftist ideology of anti-free enterprise, anti-religion and anti-due process. The schools are already doing that now.
(Never mind pointing out that children were peer pressured into the Hitler Youth and, then, eventually forced into it in Nazi Germany. The Left will never acknowledge its own fascist tendencies)
Punishment for most need only be what it was in the Soviet Union…discrimination. In the world of “free” education, “free” healthcare and government-allocated housing and employment, there were loads of ways the USSR kept its people in line. A family practicing Christianity, for example, may not have to be arrested, but their kids might not be permitted college attendance, the family might be moved to a much smaller apartment or forced to share an apartment with another family, they might be put at the bottom of the rationed list for consumer goods (as Jack has pointed out, there are only so many resources and, ultimately, those resources have to be rationed. Why not limit the resources to those who refuse to tow the line?)
After all, the Left already wants to force those who don’t subscribe to its cant out of business. Is it so difficult to believe that an American Soviet-style government would not only make it impossible for ideological opponents to run a business, but also to prevent them from benefiting from higher education, decent housing and healthcare or a standard of living equivalent to those on the rolls of the Party membership?
And the politicians and celebrities will still live well and above the millions of comrades who are their alleged equals. There is a 1% in every country…regardless of its system of government.
So it will just be like the Taliban, only a different religion.
Obstruction of justice has been defined so broadly that almost every witness can be nailed for it if the prosecutor tries hard enough. Just two of the most high profile cases that come to mind:
1. Martha Stewart and her lawyers met with the US Attorney for a voluntary interview. The prosecutor asked her a question. She answered, “No.” Her lawyer said, “Excuse us for a minute,” leaned over and whispered with her. Then he said, “We’re not sure about that. Let us check and get back to you.” The next business day, her lawyer informed the US attorney that the answer was, “Yes.” She was convicted of obstruction of justice for creating an interval of one minute where the prosecutor might have been misled. Extra added bonus: The only evidence that Stewart had answered, “no,” was the prosecutor’s recollection. Her own lawyers’ notes (very detailed notes, amounting to a virtual transcript of the interview, taken by a young lawyer who had been assigned to that sole task) said that she had answered, “I don’t know.” Stewart went to prison for this.
2. Barry Bonds was convicted of obstruction of justice for giving a long, rambling, unresponsive answer to one of the prosecutor’s questions in front of a grand jury. The prosecutor asked the question a second time, and Bonds gave a short, direct answer. The conviction was ultimately reversed on appeal, but he lost his motion to dismiss at trial as well as first appeal, so many judges agreed that wasting three minutes of the prosector’s time constituted a felony. Extra added bonus: It seems clear to me that the prosecutor’s real purpose in interviewing Bonds and other athletes wasn’t to investigate a crime; it was to force them to admit to steroid use in front of the grand jury so that their testimony could be illegally leaked to embarrass them.
This is why Trump should never, ever agree to sit with Mueller. The chance that he gives the correct answer to each question on his first attempt (even if he tries hard to be truthful), much less that he avoids giving long, rambling answers, is zero. And of course, every tidbit from the interview that can be spun in a way embarrassing to the President will be on the front pages of the New York Times and Washington Post the next day.
Dear Sir, I have just had the most fascinating hour watching a Youtube interview of Lindsay Shepherd which includes recordings she made of some PC Gendarmes from her university trying to ‘straighten her out in regard to what and how she presents issues to her “sensitive” students. The interview was broadcast on Youtube in the Rubin Report, (Health Warning – it could do your head in or cause you hours of work) Regards, Mark Cooper