Tag Archives: special prosecutor

Responsible And Necessary: The Appointment Of A Special Counsel

The Justice Department appointed Robert S. Mueller III (above), a former F.B.I. director, as special counsel to handle the Russia probe.

I am reading conservative pundits fuming over this development for a number of reasons, some of them valid and troubling. However, there is no good argument to be made that a Special Counsel isn’t necessary now.

Assistant Attorney General Rod Rosenstein explained his decision to make the appointment (remember, he is acting AG in the Russian investigation, because Jeff Sessions was bullied and hectored into recusing himself, also unavoidable):

“In my capacity as acting Attorney General, I determined that it is in the public interest for me to exercise my authority and appoint a Special Counsel to assume responsibility for this matter.My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination. What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.”

Exactly. As for the last sentence, President Trump has no one to blame but himself. His own, typical, blundering, blathering ways created this atmosphere—that and “Deep State” leaks calculated to undermine him, and a news media feasting on those leaks like sharks on chum.

It is being argued that you can’t appoint a special prosecutor unless there is a finding that crimes have been committed. Here are the relevant sections of the law:

§ 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and –

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

§ 600.2 Alternatives available to the Attorney General.

When matters are brought to the attention of the Attorney General that might warrant consideration of appointment of a Special Counsel, the Attorney General may:

(a) Appoint a Special Counsel;

(b) Direct that an initial investigation, consisting of such factual inquiry or legal research as the Attorney General deems appropriate, be conducted in order to better inform the decision; or

(c) Conclude that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter. If the Attorney General reaches this conclusion, he or she may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials.

I don’t read the law so narrowly. The law requires that there be a determination that a criminal investigation is warranted, not that crimes have been committed. Continue reading

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Unspoken Ethical Quote Of The Month: Outgoing U.S. Attorney General Eric Holder

Attn. General Holder Testifies At Senate Judiciary Hearing On Justice Dept Oversight

“No, I respect the motives and intentions of my critics. Those who have opposed me genuinely disagree with my philosophy and approach to the job, and I would never denigrate them by attributing their opposition to race, bias, or anything but the same passion and belief in their goals for the nation that I have in mine.”

What Attorney General Eric Holder could have and should have answered in his “exit interview” with Politico’s Mike Allen, in answer to the question, “Now, there clearly have been times …when you have felt disrespected on Capitol Hill. How much of that do you think relates to race?”

Holder didn’t answer this way, however.

Holder is black, and consistent with the message that has been trumpeted from the White House, Democrats, the Congressional Black Caucus, and Presidential advisor and Holder consort Al Sharpton for more than six years, any and all problems, criticism, misfortune or failure affecting African Americans can plausibly, reasonably, credibly, and advantageously be attributed to racial bias or outright racism.

Thus Holder’s actual answer to Allen was…

“Yeah, there have been times when I thought that’s at least a piece of it.”

Continue reading

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Ethically Incoherent Statement Of The Month: Van Jones

Van Jones: Reasonable or biased?

Van Jones: Reasonable or biased?

Van Jones, the former White House “czar” of something or other turned smooth-talking racialist warrior on CNN’s “Cross-Fire” and various TV panels, was arguing for frank racial dialogue on ABC’s “This Week With George Stephanopoulos,” in the context of the protests over the Ferguson and Staten Island police grand jury decisions. Sounding reasonable as he often does, Jones then said that what should be an area of agreement is the need for a special prosecutor whenever police misconduct is before a grand jury, noting that it was an “obvious conflict of interest”for prosecutors who work with police as a core element of their job.

I have addressed this argument before, but let me be clearer. This is a conflict of interest that a competent and ethical prosecutor should acknowledge and be able to deal with as the legal ethics rule require. The prosecutor should get a waiver from his or her client—not the victim’s family, but the government the prosecutor represents—and honestly assess whether the fact that the police serve the same client will prevent the prosecutor from being fair and objective. If the answer is yes, then the prosecutor must recuse, but I see no reason why the answer should be yes, if the prosecutor is ethical and worthy of the position.(Jones and other advocates for this “solution” have a bias against prosecutors, whom they view as presumptively unethical.)

Theoretically, every case in which an officer’s credibility determines whether a citizen should be charged poses the same conflict: it is endemic to the prosecutor’s job. Indeed, prosecutors have a very good reason to want bad cops punished and removed from the police force; I’m not at all certain that there is a necessary bias on the part of prosecutors in favor of letting such cops escape legal consequences of their actions. That assumption is based on the assumption that prosecutors don’t care about  justice. Nobody who doesn’t care about justice becomes a prosecutor. Why would they? It is a hard, frustrating job and the pay isn’t anything special.

The strongest argument for a special prosecutor is a different ethical problem, the appearance of impropriety. If the decision to prosecute or not is tainted with suspicion of bias, then the justice system is compromised and breaks down. This is why, for example, it is terrible that the Justice Department, a super-politicized one at that, is supposedly investigating the I.R.S. scandal.

As George moved to another topic, Jones blurted out a final statement that caused me to spit-take a mouthful of coffee. It undermined all of his finely tuned rhetoric about fairness and non-partisan dialogue about race, and exposed, ironically, his own biases. He said;

“If there had been a special prosecutor in Ferguson, we would have had a different result.”

AHA! Continue reading

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If Someone Praises The Job Eric Holder Did As Attorney General, That Tells You All You Need To Know

eric_holder_ap1

Eric Holder was the most political, biased, inept and undemocratic U.S. Attorney General  in at least 70 years, with the  exception of Nixon’s AG, John Mitchell, who went to jail. And the Attorney Generals have been uniformly terrible in this period; being one of the two worst takes talent, determination, broken ethics alarms and wretched judgement.

Those who praise Holder either are doing so without any idea about his record, or because they want the justice system in the United States to be racially and ideologically biased. The results of the latter, which is Holder’s real legacy, can be seen in the rising distrust between races, and the frequent description of Holder as being Obama’s “scandal goalie.”  The latter isn’t completely fair, because the news media has also been the President’s scandal goalie. The proof: few of the mainstream media retrospectives on Holder’s tenure mentioned the Justice Department’s refusal to hold a thorough and open investigation of the still unfolding I.R.S. scandal, which should have, and under any Republican administration, would have, included an independent prosecutor, because the news media would be screaming for one. This abdication of duty and naked partisanship by Holder alone condemns him. Unfortunately, there is a lot more.

You can begin with the “inside baseball” reports that Justice, under his administration, is a confused mess. That’s hardly surprising, for since the President eschews management and oversight, this is the tendency up and down the system. Without well-regulated policies and oversight, partisan meddling flourishes.

I have neither the time nor the energy to detail each and every example of Holder’s toxic racial and partisan biases, or his flat out ineptitude; there are too many to list, and I am sure I don’t know about some whoppers. Never mind: a fraction of the list would have made the resignation of any other Attorney General mandatory and beyond debate.  Holder is black, and this guaranteed that short of setting fire to the Supreme Court, he would only leave when he was ready. That alone is disgusting.

Here are some other Holder achievements:

1. “If Holder had his way, Khalid Sheikh Mohammed, the mastermind of the Sept. 11 terrorist attacks, might now be on death row,” says ABC. This is the media spinning for Holder: his efforts to have the terrorist tried in New York City was when I first realized how out of his depth he was.

In the contentious Congressional hearings on the matter, Holder told the nation that“Failure is not an option. These are cases that have to be won.” “That have to be won”? Failure, as in acquittal, is “not an option”? This was a confession of the muddled, simultaneously alpha and omega false logic that would become a hallmark of Obama World. Holder proclaimed that the world had to see the United States give its enemies a fair trial, then told Congress that the “fair trial” he was proposing was a show trial,  a kangaroo court, in which justice meant a guilty verdict. It was a stupid, stupid thing for any lawyer, much less an Attorney general to say. Tragically, it was no aberration.

2. Holder refused to defend the Defense of Marriage Act, though it was a law passed by Congress and signed  by a Democratic President. I think he should have been impeached for that. Slate, among others, says that he was “vindicated” because the Supreme Court held the law unconstitutional. They didn’t vindicate his refusing to do his job. It is not the prosecutor’s duty to veto laws duly passed by the legislature and signed into law, nor should he have the power to do so. Holder’s precedent took a bite out of the rule of law, and stood for stunning arrogance. He viewed DOMA as a civil rights incursion: gee, what other laws don’t you like, sir? We found out: he didn’t like drug laws, because he sympathized with the poor, black criminals that tended to violate them. His solution? Minimize the penalties, and send the message that abusing illegal drugs was no big deal. Democrats wanted to curry favor with the Hispanic-American voting bloc? Holder was eager to assist by not enforcing the Federal laws, and by doing everything he could to prevent the states from policing illegal immigrants as well. In a system of laws, favoring authorities that pick and choose which to enforce according to their political beliefs is endorsing obstruction over process, and politics over justice.

3. When acting unconstitutionally suited Holder’s partisan masters, however, he would do it. In 2013, the Justice Department  seized Associated Press phone records, and monitored Fox News reporter James Rosen following a story he published in 2009 on Iran.

4. Holder oversaw specious and intellectually dishonest justifications for the U.S. policy of assassinating suspected terrorists without providing them with a trial, and or any evidence that they were planning imminent attacks. By defining the word imminent in the broadest possible way, this advocacy for the elimination of due process equaled the worst deceits of the Bush Torture Memos, the only difference being an official pass from the Obama-enabling press. The policy, basically a license to murder, ensured that assassinations could be carried out against anyone who the U.S. government feared if the person was located on foreign soil and could not be captured.

5. Then there is Operation Fast & Furious, the proof positive that Holder was going to get away with anything and everything. The Bureau of Alcohol, Tobacco, Firearms and Explosives lost an estimated 1,400 weapons in Mexico, among them: two guns that were used to kill U.S. Border Patrol agent Brian Terry in December 2010.  Holder is the supervisor of the ATF, but testified before the House Judiciary Committee that he had only known about the sting named “Operation Fast & Furious,” for a few weeks. Then investigators uncovered memos on Fast & Furious sent to Holder in July 2010. A reasonable conclusion was that Holder had lied under oath. Oh, no, Holder “explained,” he never read the memos. He was incompetent, not culpable. Despite all evidence to the contrary, Holder indignantly denied a DOJ cover-up, saying that“This operation was flawed in concept, as well as in execution,”  and refusing to be held accountable for his own department’s deadly botch. Bolstered by Obama’s assertion of executive privilege, which prevented future prosecution, Holder refused to turn over documents related to the fiasco. Congress held Holder in contempt in June 2012, and he thoroughly deserved it, because the American people had a right to know the extent of the bungling in the highest reaches of the Obama Administration.

6. Although the supporters of Holder claim that his legacy was built on a dedication to civil rights, this was only in the narrow areas where the Democratic Party saw political advantage. He was not concerned, for example, in the civil rights of Americans when the government wanted to use modern surveillance technologies to spy on them. In the 2012 Supreme Court case U.S. v. Jones, Holder’s Justice Department argued that the police did not violate the Fourth Amendment by attaching  GPS devices to cars so they could know where they were going and where they had been, with that evidence used to acquire evidence. incriminate, try and imprison.  The Supreme Court rejected that position unanimously, because it was a mark of a burgeoning police state.

7. When Democrats wanted to create racial divisions, however, to rile up the base, Holder reported for duty. He assisted the unconscionable effort, still ongoing, by Democrats to characterize a responsible and necessary protection of the integrity of the voting process—photo IDs—as a racist plot, though the measure had long ago been approved by liberals, and only recently became stigmatized as “voter suppression.”

8. Holder’s major wound that he inflicted on the nation was his clear intention to project the image of a black Attorney General whose concern was minorities, whose assumption was that whites were the enemy, and whose biases were front and center. An early cue was his department’s abandonment of charges against two New Black Panthers who stood armed outside a Philadelphia polling place. The controversy, assisted by the media, devolved into an argument over whether this was an example of Justice receiving orders from the political Machiavellis in the White House, or just a lousy, bigoted example of “discretion.” A long official investigation found the latter, but either way, the message sent to white Americans was that this Justice Department was not especially interested in protecting their rights. In the Trayvon Martin shooting and the Ferguson episode, two local issues that should not have been his concern, Holder made statements, engaged in gestures and took actions that signaled his allegiance to the black victims, and opposition to the white (or “white Hispanic”) individual accused. He repeatedly spoke collaboratively before Sharpton’s followers, endorsing their diagnoses of a racist nation, and, by extension, a white population aligned against African Americans. Especially revolting was his repeated attempts to duck legitimate accountability for, you know, being terrible at his job, by race-baiting, such as when he explained Congressional criticism of his handling of Fast & Furious—a career-ender for any white Attorney General, or an appointee of any President who believed in accountability, by saying in 2011…

“This is a way to get at the president because of the way I can be identified with him, both due to the nature of our relationship and, you know, the fact that we’re both African-American.”

It shouldn’t have to be said, but I’ll say it anyway: the job of Attorney General, like the job of President, must be, and must be seen as being, absolutely neutral regarding race. Holder intentionally projected himself as an AG who cared more about minorities than non-minorities, increasing distrust, undermining respect in the justice system, and dividing the nation.

9. Not that he wasn’t feckless and incompetent too: for example, Holder’s Justice Department, almost certainly to ensure later campaign support, allowed multiple corporate criminals to escape serious punishment. For example, the Justice Deportment made a ridiculous plea deal to allow Halliburton executives to avoid jail time after they destroyed evidence of their culpability in the Deepwater Horizon oil spill. The company agreed to pay the maximum allowable fine of $200,000, accepted  a three-year probation;  continued its cooperation with the government’s criminal investigation (which it had to anyway), and  made a voluntary contribution of $55 million to the National Fish and Wildlife Foundation to clean off those oil-covered sea birds and otters. It could do this with the confidence that hard-core Democrats, being total hypocrites, would still attack the Republican party as a cadre of soulless corporate fat cats and insist that any criticism of Holder’s Justice Department and his boss’s administration was rooted in racism.

And again, the amazing thing is: That’s not all.

Any politician, elected official, pundit, columnist, civil rights leader or President who declares that Eric Holder was a wonderful public servant and a great American is telling you one of three things, or all of them:

  • They are liars.
  • They don’t know anything about Eric Holder, or
  • They believe the integrity of the nation’s laws should be warped and the public trust should be forfeited for a race-based, partisan agenda.

I don’t know about you, but I’ll be taking names.

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