Mueller Investigation

More from, and to, Prof. Dershowitz

Further explication of our ongoing disagreement concerning the scope and conduct of the Mueller investigation.

|The Volokh Conspiracy |

[Updated 12/11/2018 at end]

Last week, I published a post [here] criticizing the comments that Alan Dershowitz had made in a Fox News interview [here] concerning the Michael Cohen guilty pleas. Prof. Dershowitz responded to my post [here], chiding me for, among other things, "deliberately failing to quote" from his more extensive op-ed dealing with these issues [here]. I noted, parenthetically, that I hadn't quoted or cited Dershowitz' op-ed because I was unaware of its existence.

I would have been content to leave the matter there, but Prof. Dershowitz has again taken issue with what I wrote.

"It's no excuse that Post was unaware of my oped on the subject. Tom Brady would have done a bit of research—a simple Google search—before leveling an unfair attack based on an out-of-context TV snippet. I want the debate to be live so that the public can judge who is Willie Mays and who is Tom Brady. The only time ageists comment on my advanced age is when they disagree with conclusions and don't have good responses on the me merits."

First, let me be clear that I wasn't commenting on Prof. Dershowitz' age, any more than I was commenting on Willie Mays' age, in the original post; I was commenting on his performance in public view—on the field, as it were.

Second: I do not agree that I should have searched for and consulted his op-ed—or any of this other writings, for that matter—before writing the original post. I don't buy it. He said what he said, and an audience of many millions of people—no more than a handful of whom, surely, had read his op-ed—heard what he said. For the vast majority of those viewers, then, that is his contribution to the public debate on these matters. I hardly think it is unfair to base my criticism of what he said on what he said.

I am not unaware that it can be difficult to summarize complicated legal arguments in a sound bite or snippet. But that is just the risk you take when you voluntarily inject yourself into the public debate via TV interviews and sound bite snippets. Certainly, in the pressure of the moment, anyone may say things that are incorrect and/or misleading; I've done it myself. But the correct response in that case is a retraction, perhaps accompanied by an explanation or even an apology, not "Go read my other stuff and you'll see what I meant to say."

Third: "Read the op-ed," Prof. Dershowitz wrote, "and respond to that." Fine—I did, and I shall. I don't believe it strengthens Dershowitz' case.

"It was always an uphill struggle for Mueller, since collusion itself is not a crime. In other words, even if he could show that individuals in the Trump campaign had colluded with Russian agents to help elect Trump, that would be a serious political sin, but not a federal crime. Even if Mueller could prove that members of the Trump team had colluded with Julian Assange to use material that Assange had unlawfully obtained, that, too, would not be a crime. What would be a crime is something that no one claims happened: namely, that members of the Trump campaign told Assange to hack the Democratic National Committee before Assange did so. Merely using the product of an already committed theft of information is not a crime." (emphasis added)

That is incorrect. To be sure, "collusion" (whatever it may mean, precisely), or using stolen information, is not always a crime. But that's not what he said; he said—three times in one paragraph—that it is not a crime when in fact, in certain circumstances, it may well be. And we don't yet know, because Mueller has not completed his investigation, whether those circumstances did, or did not, pertain in connection with the 2016 election.

I can think of any number of very plausible "collusion" scenarios, based on (and consistent with) everything we now know about the actions of Trump campaign officials during the 2016 campaign, that would indeed constitute federal and/or state crimes. For instance:

It is unlawful for foreign nationals (and, by extension, foreign governments) to contribute, directly or indictly, "anything of value" in connection with a federal, state, or local election, and it is unlawful for anyone to "solicit, accept, or receive" such a contribution. 52 USC § 30121.

The Economic Espionage Act makes it a federal crime for anyone who "receives, buys, or possesses a trade secret, knowing the same to have been stolen or appropriated, obtained, or converted without authorization" if he or she "intend[ed] or kn[ew] that the offense will benefit any foreign government, foreign instrumentality, or foreign agent." 18 USC 1831.

It is a federal crime for any person "who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal," to "engage within the United States in political activities for or in the interests of such foreign principal" or to "act as … a political consultant for or in the interests of such foreign principal" or to "solicit, collect, disburse, or dispense contributions, loans, money, or other things of value for or in the interest of such foreign principal" without registering as a foreign agent with the DOJ. 22 USC § 611, 612.

It is a federal crime for anyone to "receive, possess, conceal, store, barter, sell, or dispose" of any "goods, wares, or merchandise, … which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken." 18 USC § 2315

It is a federal crime to "knowingly steal, … or obtain by fraud, artifice, or deception" any "trade secret that is related to a ,,, service used in or intended for use in interstate or foreign commerce," intending or knowing that the offense will, injure any owner of that trade secret> It is also unlawful to "receive, buy, or possess such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization," and to "conspire with one or more other persons to commit" any of these offenses. 18 U.S.C.S. § 1832

It is a federal crime to "intentionally access without authorization" a computer "which is used in or affecting interstate or foreign commerce or communication" and obtaining information thereby, as well as accessing such computer "knowingly and with intent to defraud … and by means of such conduct furthers the intended fraud and obtains anything of value> 18 USC § 1030 et seq.

And that is just for starters, off the top of my head; there could well be additional crimes involved in conspiracies to accomplish any or all of the above. And the larger question of whether the Trump campaign was a "Racketeering Enterprise" under RICO.

Let me be clear: I am not saying that we know, at this point, whether these crimes have been committed. I don't know, and Prof. Dershowitz doesn't know, what facts Mueller has uncovered regarding what transpired during the many meetings and phone calls that now appear to have taken place between Cohen, Manafort, Roger Stone, Julian Assange, Donald Trump Jr., etc. etc. and agents of the Russian government in connection with the Wikileaks release of stolen DNC emails, and whether those contacts satisfy the elements of these violations.

But to say—as Dershowitz has said—that whatever happened, it was at most a "political sin" and not a federal crime is bizarre, irresponsible, and incorrect.

One final point. Prof. Dershowitz' op-ed also contained this:

"It is important to note that Special Counsel Robert Mueller does not have a roving commission to ferret out political sin, to provoke new crimes, or to publish non-criminal conclusions that may be embarrassing to the President. His mandate, like that of every other prosecutor, is to uncover past crimes. In Mueller's case those crimes must relate to Russia."

That also is incorrect. Mueller's mandate is spelled out, quite clearly, in his appointment letter [here]: In order to "discharge the [DOJ's] responsibilty to ensure a full and thorough investigation of the Russian government's efforts to interfere in the 2016 presidential election," Mueller was expressly authorized to conduct an investigation into "any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump" (emphasis added). That is a considerably broader mandate than one limited to "uncover[ing] past crimes." Indeed, Prof. Dershowitz' own argument—that using information that was known to have been unlawfully obtained by a foreign government and which was being made available, in secret transactions, for the express purpose of influencing an American presidential election isn't a crime!—shows how much broader Mueller's mandate actually is.

I'd like to know if that actually happened, crime or no crime: did Trump campaign officials in fact use information that was known to have been unlawfully obtained by a foreign government and which they knew was being made available to them via secret transactions for the express purpose of influencing an American presidential election? And thankfully, that—and not Prof. Dershowitz' imagined mandate—is precisely what the American people, through our Department of Justice, have authorized Mueller to figure out as best he can. What the hell was going on? Were there "any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump"? And if there were, what were they, and how did they operate, and for what purpose? It may turn out to be profoundly important for the future of this country that we have authorized an investigation to help us figure that out.

But Prof. Dershowitz' has mischaracterized all that for his viewers and readers. They would conclude—reasonably enough, based on Prof. Dershowitz' mischaracterization of the mandate—that the Mueller investigation will have somehow "failed" if it produces nothing more than uncover "political sins" and not indictable crimes. That is false, and it is pernicious.

***************************************

Prof. Dershowitz responds:

There could be no better proof of my point than David Post's absurd catalogue of possible crimes that he believes are applicable to President Trump's conduct. I once wrote the following in an op-ed; "When I taught law at Harvard, I always gave a final exam that included what is called an 'issue spotter.' I presented a complex hypothetical case, often based on a real one, and asked the students to stretch their imaginations to come up with every conceivable crime that might be charged and every conceivable defense that might be offered. That was the first part of the question, and most students excelled at spotting the relevant issues. In the second part of the question, I asked them to use their judg[e]ment in deciding which, if any, of these crimes could realistically be charged and which defenses could realistically be offered. It was this part of the question that separated the very good lawyers, which included the vast majority of the students, from the exceptional ones. To be great lawyers requires the exercise of judg[e]ment, subtlety, nuance, and an ability to predict what the courts will do." Post's catalogue reminds me of the first group of students. The best example of the danger of Post's catalogue is his inclusion of the federal statute that states it a crime for anyone to "'receive, possess, conceal, store, barter, sell, or dispose["] of any "goods, wares, or merchandise, … which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken.' 18 USC § 2315" If that statute were to be applied to first amendment protected material, the publishers of the New York Times, Washington Post, and The Guardian would still be serving their prison terms for publishing material stolen from Manning, Snowden, and Ellsberg, all of which crossed state lines. Obviously, to apply that 'stolen goods' statute to information used in a political campaign would be unconstitutional.

Now to Post's most dangerous point: that Mueller's mandate extends to exposing non criminal behavior. If the mandate were so interpreted, it would be unlawful, perhaps even unconstitutional. The purpose of a Grand Jury, as reflected in the Fifth Amendment, is not to grant a roving commission to a prosecutor who hears only one side of the case. It would violate every norm of fairness to allow a prosecutor to use the imprimatur of the Justice Department to present a one-sided, political attack against any citizen, including the President. Grand Juries and Prosecutors have one job and one job alone; to uncover crime, not to reveal sin. Revealing sin was the function of the inquisition and perhaps the Starr chamber. It is not the proper function of an American grand jury or prosecutor.

If the shoe were on the other foot—if a President Hillary Clinton were being investigated by a special council [sic] I doubt that we would be hearing such dangerous anti-civil liberties interpretations from so distinguished a professor as David Post.

NEXT: America Needs More Dentists

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Which why Muellers appointment is unlawful. He is a special prosecutor, who must be appointed to investigate a crime. He is not legally able to do a counter intelligence investigation, which is what the FISA driven investigation was (and still is?)
    Criminal prosecutors cannot be allowed to invetigate “stuff” and find a crime. That is the job of the police.
    You are supporting tyranny on a Libertarian blog. You are in the wrong place. Need to try NY Times, which has a long history of excusing and covering for tyranny.

    1. “Need to try NY Times, which has a long history of excusing and covering for tyranny.”

      Like when?

      1. How about covering up the Stalin-induced Ukraine famine in the 1930’s?

        http://thefederalist.com/2017/…..est-1930s/

        1. The best evidence of NYT supporting tyranny is from the 1930s? They made their peace with this over 30 years ago. Let’s try something a little more contemporary.

          1. “Let’s try something a little more contemporary.”

            Why? The left seems to think it’s perfectly okay to bash people over 30+ year old unproven allegations of sexual misconduct.

            1. …which is “…a little more contemporary.”

              So to match that, ThePub would be bringing up NYT behavior from the late 80’s, not the 30’s.

              1. They are dredging up crap 30 year old crap on adults that goes back to their high-school days or even grade school days. In my opinion, that shows a lack of recognition of any limits on how far back you can go.

            2. “The left seems to think it’s perfectly okay to bash people over 30+ year old unproven allegations of sexual misconduct.”

              I suspect people on the left and the right mostly agree that rapists deserve some scrutiny for 30+ years. But can you think of any differences between human beings and corporations that might factor in here?

      2. The NYTimes is very, very good at shoving inconvenient facts about tyrants and dictators down the memory hole, giving coups and tyrannies legitimacy. Their recent coverage of the political crisis in Sri Lanka, for example, could easily be misread to be a mere political dispute between the president and a parliament controlled by his opposition – rather than a series of blatantly illegal attempts by the president to install leaders of his choosing.

        They’re not even very good critics of Trump. They harp on migrant children but easily accept Trump’s framing of issues in ways that serve his narrative, granting them a patina of legitimacy and legality that more careful observers would not.

        1. Is that how you interpreted this article?

          1. The NYTimes published several articles, over the course of a couple of weeks, on what it called the “political crisis” in Sri Lanka. Initial references that made clear that the president had no legal authority to name the prime minister or suspend Parliament were dropped or demoted in significance. I guarantee you that, if Parliament had acquiesced to the move, any question on the legality of the move would be completely forgotten.

            Much the same has happened over Whitaker’s appointment to head the DOJ.

      3. Ny times literally just had lusty travel guides to North korea talked about how great sex is under communism, and other crap. How ignorant are you?

    2. Which why Muellers appointment is unlawful.

      It’s not.

      He is a special prosecutor, who must be appointed to investigate a crime.

      Special Counsel, and that is exactly the purpose for which he has been appointed. Read the Special Counsel regs.

      He is not legally able to do a counter intelligence investigation,…

      Your basis for saying this being…?

      …which is what the FISA driven investigation was (and still is?)

      I realize you’re mentioning FISA just because you’ve been huffing Trump fumes for months, and don’t have any clear understanding of why it even matters here, just that it’s somehow nefarious, but as a matter of fact FISA exists for the specific purpose of uncovering criminal conduct. The law doesn’t recognize the strange distinction between criminal law and “counter intelligence” you’ve made up.

      Criminal prosecutors cannot be allowed to invetigate “stuff” and find a crime. That is the job of the police.

      Go back to your crayons.

      You are supporting tyranny on a Libertarian blog.

      Tyranny by whom, exactly?

      1. Don’t have time to link you… but McCarthy at national review destroys your ignorance if you care to educate yourself. He has a half dozen articles clearing out the requirements for a special council. And yes, it requires a crime by statute.

    3. It’s the Federal Bureau of Investigation. In Mueller’s appointment, Trump not mentioned as an individual. Collusion is not mentioned, is not a crime, not even a legal term. Trump denying collusion is like denying he shot Lincoln. The crime was known.

      Mueller Appointment.

      (a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States
      Department of Justice.

      (b) The Special Counsel is authorized to conduct the investigation confined by then-FBI
      Director James 8. Comey in testimony before the House Permanent Select Committee on
      Intelligence on March 20, 2017, including:

      (i) any links and/or coordination between the Russian government and individuals
      associated with the campaign of President Donald Trump; and (((found over 100, Trump said zero)))

      (ii) any matters that arose or may arise directly from the investigation; and

      (iii) any other matters within the scope of 28 C.F.R. ? 600.4(a).

      (c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is
      authorized to prosecute federal crimes arising from the investigation of these matters.

      1) Dated 5/17/17, SIX MONTHS BEFORE the malarkey that a FISA warrant launched the investigation

      2) Based on the EXISTING investigation that TRUMP says caused him to fire Comey.

      3) Obama was born in Hawaii.

      Anything else?

      1. Re: your (1), DOJ filed the FISA application in October of 2016. Origins of the investigation don’t pass the smell test.

        Not saying Trump is squeaky clean–I think he’ll be blistered by Mueller–but DOJ’s conduct during the final 12 mos. of Pres. Obama’s presidency was a disgrace.

        1. That’s why winners post links … and losers just screech.

          1. Your odd response ignores basic facts and shows that you’re an undisciplined creature whose feelings are your master. But if a link and quote are prerequisites for measured responses: “an October 2016 application to the Foreign Intelligence Surveillance Court to wiretap Mr. Page…”
            http://www.nytimes.com/2018/07/21/us/…..-fisa.html

            FISA application filed in October 2016. The investigation was initiated even before October 2016. Mueller appointed 8 months later.

            1. you’re an undisciplined creature whose feelings are your master

              (sneer)
              I baited you, and the clue SHOULD have been obvious!

              Informed non-goobers know the investigation was launched after George Papadopoulos said something TOTALLY stupid , presumably while drunk.

              How the Russia Inquiry Began: A Campaign Aide, Drinks and Talk of Political Dirt
              During a night of heavy drinking at an upscale London bar in May 2016, George Papadopoulos, a young foreign policy adviser to the Trump campaign, made a startling revelation to Australia’s top diplomat in Britain: Russia had political dirt on Hillary Clinton.

              The diplomat IMMEDIATELY reported this to us … which launched the investigation. That’s why winners post RELEVANT links, and losers lie.

              Thank you for playing. Please select a lovely parting gift.

              Anything else, trash mouth loser?

              Sing along: “another one bites … another one bites … another one bites the dust.”

              1. What is your point?

                You previously wrote, “1) Dated 5/17/17, SIX MONTHS BEFORE the malarkey that a FISA warrant launched the investigation”

                Comey testified that the counter investigation was primarily based on the dossier used in the FISA application. Said FISA application was filed in October 2016, more than 6 months BEFORE Mueller’s appointment. You’re grasping at straws to wrap the investigation’s origins in legitimacy. The results won’t be pretty for Trump, but the SC has yet to prove any facts legitimizing the SC appointment and Sessions’ recusal.

                “trash mouth loser”? But I’m not wrong. Your feelings about Trump and his policies dictate your view of the SC investigation.

                1. “I baited you, and the clue SHOULD have been obvious!”

                  You previously wrote, “1) Dated 5/17/17, SIX MONTHS BEFORE the malarkey that a FISA warrant launched the investigation”

                  THAT was the bait!!! (smirk)
                  THIS is the OBVIOUS CLUE. From the appointment letter

                  The Special Counsel is authorized to conduct the investigation confined by then-FBI
                  Director James 8. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017,

                  What is your point?

                  That you’re a fool! …. Now a PSYCHO!

                  Said FISA application was filed in October 2016, more than 6 months BEFORE Mueller’s appointment

                  WRONG FISA APPLICATION.
                  Papadopoulos =/= Page

                  ***** Like all Trumptards, you see ONLY the words you want to see. PROVEN *****
                  Leave this to the adults.

                  Anything else?

                  1. As I said, “Comey testified that the counter investigation was based primarily on the dossier used in the FISA application. Said FISA application was filed in October 2016, more than 6 months BEFORE Mueller’s appointment. You’re grasping at straws to wrap the investigation’s origins in legitimacy.”

                    straws = Papadopoulos.
                    You = Undisciplined creature whose feelings are your master.

                    1. WRONG FISA APPLICATION
                      (SNEER)

    4. Lol, someone doesn’t understand what a special counsel does.

    5. I don’t think Mueller’s appointment is unlawful, but the “directive” offered by Rosenstein was far beyond any criminal investigation. I do agree that the objective of any Special Prosecutor *ought* to be the investigation of a *specific set* of crimes, within a narrow scope.

      David’s assertion that “we just don’t know” what evidence Mueller has is something of an evasion. Either Dershowitz accurately described non-criminal behavior, or he made an error. It seems to me that what he actually said was factually and legally correct.

      Mind you, I’d be happy if Mueller actually DID find criminal conduct (beyond extraneous fraud and foolish lies) that entailed high campaign officials and actual Russian government agents. Beyond an expansive definition of campaign law, untested in court, I don’t see any such thing.

      1. “David’s assertion that ‘we just don’t know’ what evidence Mueller has is something of an evasion. Either Dershowitz accurately described non-criminal behavior and he made an error. It seems to me that what he actually said was factually and legally correct.”

        You and Dershowitz are both wrong. Pointing out that we don’t know what evidence Mueller has is extremely relevant to whether we can know that it would not be a crime no matter what we find out that shows that “individuals in the Trump campaign had colluded with Russian agents to help elect Trump.”

        Dershowitz is hiding behind the ambiguity in the term “collusion.” tf, for example, the Trump campaign actively engaged with the Russians to time the release of stolen information in order to influence the election (e.g., held meetings to inform the Russians and/or Wikileaks of the best time to release the info to coordinate with the Trump campaigns messaging and strategy), that would violate a number of the statutes cited by Post. Of course, we don’t know that did happen. But neither you nor Dershowitz know that it didn’t happen.

        Dershowitz is saying that scenario would not be criminal.

        You are saying Dershowitz is correct that that scenario is not criminal.

        Seriously?

        If is so, you and Dershowitzare just wrong, as Post showed.

        1. Collusion isn’t even a crime for fucks sake. How do we know? Hillary actively colluded with a foreign British spy who paid Russians for Intel on trump. And did so with illegally funneled campaign payments through a law firm. If you’re so aghast at collusion… look her up.

          1. Liar.
            Again.

  2. When a lawyer represents a client in court, or otherwise is giving them legal advice, they duties and loyalties that transcend the narrow interests of the client or the particular individual/employee they are working with. They have to tell a judge if they know that their client is lying; they have to report an employee’s actions to his or her superiors, if they think they’re acting contrary to the best interests of an institutional client; they have a general duty of truthfulness that permeates all their communications; and so on.

    I wish law professors would hold themselves to a comparable standard. Too many of them (like Dershowitz) are eager to promote particular ideological viewpoints and agendas, at the expense of legal accuracy, in order to attract media attention, money, and fame. Not even the VC’ers are especially immune to this temptation – I frequently read on here posts tailored to provide a “legal analysis” that is Breitbart-worthy but hazy about important legal niceties. Some posts are outright misleading in a way that would be sanctionable if a lawyer engaged in comparable rhetoric representing a client.

  3. Mr. Post, you are reaching. Trump, nor his org., didn’t access anyone’s computer illegally. And how do trade secrets come in here, unless you define any information as a ‘trade secret,’ which not all information can be.

    However, many of the possible crimes you suggest apply directly to the Clinton campaign. How come there’s no special prosecutor pursuing that?

    1. AG Barr is on deck.

      Add in the IRS, Arkansas and the FBI investigations with the whistle blower case and they (along with the Podestas) may well find themselves in the same pickle juice as Trump

      As they say: be careful what you wish for, it may come back to bite you

    2. Mr. Post, you are reaching. Trump, nor his org., didn’t access anyone’s computer illegally.

      Nor did Trump shot Lincoln, which is just as relevant.

      1. Post says:

        “It is a federal crime to “intentionally access without authorization” a computer “which is used in or affecting interstate or foreign commerce or communication” and obtaining information thereby, as well as accessing such computer “knowingly and with intent to defraud … and by means of such conduct furthers the intended fraud and obtains anything of value> 18 USC ? 1030 et seq.”

        How is my comment irrelevant?

        1. Because “Trump nor his org” is the type of LAME excuse you people thrive on.
          Next?

    3. “However, many of the possible crimes you suggest apply directly to the Clinton campaign. How come there’s no special prosecutor pursuing that?”

      Just for the sake of argument, I’ll take that one up. Special “prosecutors” are a mechanism for dealing with conflicts of interest. Theoretically, anyway, the DOJ shouldn’t have a conflict of interest in investigating the previous administration.

      Mind, that’s only theoretical; Trump has been sufficiently obstructed from taking operational control of large parts of the Executive branch, that to a significant degree the DOJ is still working for the previous administration. You can see this in incidents like the FISA declassification, where Trump issues an order, and the order is simply refused.

      Normally, that sort of refusal to carry out a lawful order should result in immediate termination, but we saw how that went with Comey. Indeed, I think that is a key purpose of the Mueller investigation: To prevent Trump from getting control of the DOJ, by construing any attempt to do so as obstruction of justice.

      1. If he’s interfering in an investigation into his own campaign, and he obviously and repeatedly and loudly is trying to interfere with it, it is obstruction of justice.

        1. He’s not “interfering”, he’s the investigators’ boss. He has the legal authority to dictate to them their investigative priorities. He can tell them “there’s nothing here, stop wasting your time”, and it would be a lawful order.

          He’s conspicuously done nothing of the sort, as witness the fact that the investigation is still going on.

          1. He’s conspicuously ranted and raved and cast aspersions and made hugely public comments on an ongoing investigation he is connected to. If he could stop it he’d do it in a heartbeat. Obviously, he can’t, so he just tries to undermine and obstruct in a way you would have crucified Obama for in a similar situation.

            1. He can stop it in a heartbeat. He hasn’t done so.

              Are all liberal arguments predicated on ignorance?

              1. If he hasn’t, then he can’t. Are all right wing arguments utter denials of the bleedin’ obvious?

                1. He has the authority to stop it. But it would be politically disastrous for him to do so. And the can lawfully do other things to render it ineffective, like issuing individual, or even blanket pardons. But he hasn’t done that either.

                  1. Stopping it would be obstruction of justice.
                    Pardons would have him impeached AND CONVICTED within 30 days.
                    Which then opens him to prosecution, and inevitable prison time,

                    He may do it anyhow, since he’s so impulsive, totally lacking in self-control.

                    1. “Stopping it would be obstruction of justice.”

                      Exercising his authority as chief executive would not be obstruction of justice.

                    2. Exercising his authority as chief executive would not be obstruction of justice.

                      Judge Napolitano joins me in laughing at you. ON FOX!

                      Anything else?

                    3. “Anything else?”

                      Yes. It appears that you are unable to understand “Fox and Friends” content. That is all.

                    4. LAME …plus DIVERSION

                      Denies Judge Nap as an authority … has NO SOURCE OR AUTHORITY FOR HIS WACKO ASSERTION,

                      Never clicked the proof — or lied about it — which says Judge Nap SHUT DOWN the goobers/hosrts at Fox and Friends.

                2. Only the Authoritarian Right.

                  Authoritarian Left – Authoritarian Right = Zero

        2. Hey dummy… comey, Baker, and everyone else says trump hasn’t interfered with the investigation.

          1. We know TRUMP thinks he’s an Emperor, above the law.
            But how did he brainwash so many others?

            comey, Baker, and everyone else says trump hasn’t interfered with the investigation.

            Do you have NO shame? Not even a trace?

  4. Don’t you guys get tired of this stuff? Arguments and counter-arguments about some little thing that might technically slip under some wire, trip some esoteric legal threshold so your revenge fantasy about Trump might come true? Is that what your life is about? Are revenge fantasies what good people spend their time on? Is that the purpose of law and law enforcement?

    Do you ever think that maybe your desire to use government power (or see it used) might not be a healthy desire? That treating other people as tools in part of a social scheme (no doubt well-intended), doesn’t evince a dignified and worthy esteem for their individuality and humanity? They did not sign up to be your tools or your toys.

    Do blue team guys ever ask themselves questions like this?

    1. When you beg the question, you get the answer you want.

      We might as well ask the same questions you’re asking here about the lengthy campaign in Congress to undermine Hillary’s presidential campaign. Was it a revenge fantasy? Was it an abuse of power? We somehow got from investigating the attack on U.S. facilities in Benghazi to wild conspiracy theories about what Hillary might have known about the intricacies of her e-mail servers, and when, and whether they met the “esoteric legal thresholds” of violating applicable law. We even had Comey issuing unprecedented (in content and timing) statements about his investigation into these damn servers, in ways that likely influenced the election.

      And you think investigating whether Russia tried to influence our presidential elections is a waste of time?

      1. So your response to “what kind of person do you want to be?” is they did it too? That’s the opposite of enlightened.

        1. It’s no less “enlightened” to purport to ask questions of the “blue team” that you ought to be asking yourself.

          1. Your defense is impenetrable. You are immune to self-appraisal. Congrats?

            1. I don’t particularly care to “defend” myself against anything, because I don’t accept your premise – that I (or the “blue team”) are interested in “revenge fantasies” or using people as “tools” in a broader “social scheme” or anything like that.

              Mueller’s investigation, and my interest in its reaching its full conclusion, is not about Trump, no matter how much he thinks it is. It is about Russia’s attempts to subvert our democracy. I, and every loyal American, should want the same thing.

              1. “Subvert democracy” by letting the public in on secret partisan manipulation schemes. Our “democracy” would not be “subverted” if the public never found out what the DNC was doing, I guess.

                These words “subvert” and “democracy” are used oddly here, seemingly to mean the opposite of what their commonly understood meaning is.

                1. “Subvert democracy” by letting the public in on secret partisan manipulation schemes.

                  Unsurprisingly, you have a limited recollection of what the released e-mails actually showed – no doubt a consequence of how they were culled and released.

                  Do you think similar e-mails didn’t exist on the Republican side? Do you think that the meeting in Trump tower was really about adopting kids?

                  It’s not transparency that I object to so much as I object to selective transparency intentionally designed to undermine one candidate rather than the other. That’s how autocrats in “illiberal democracies” like Hungary and Turkey obtain and consolidate power. And you’re buying it, hook, line, and sinker.

                  1. Whatever the Republicans did, I’m confident it’s not nearly as interesting as the made up stories about what they did.

                    Republicans should adopt a strategy of radical transparency in future campaigns. When everything you do is recorded and posted online, it will be harder for the media to make up false stories.

                    Recording every minute of your life is going to be the future anyway. That’s the only way to defend against Kavanaugh-style “37 years ago I had a scary 45-second encounter that no one else remembers and that produced no corroborating evidence” accusations.

                    1. Yeah, only true stuff gets posted online.

      2. Do you think the blue team has some sort of property rights over voters’ votes, and when voters found out about Hillary’s email subterfuge and learned about the Democrats’ operations from their emails, the blue team was deprived of their right to voters’ votes?

        When do you get over it and just acknowledge that voters voted? How many years of obsession and grievance are too many? What’s the good amount of time to stay obsessed and aggrieved?

        1. I think the American people were misled and lied to by a congressional committee that purported to be “investigating” the Benghazi attack, but was really just designed to discredit and malign Hillary. I think the American people were selectively exposed to details on the inner workings of the Democratic party apparatus, which details likely differed in no substantial way to inner workings of the Republican party apparatus, using information stolen by a hostile foreign government and released specifically to hurt Hillary.

          And, yes, people voted. A plurality of them voted for Hillary. Trump won only because of some antiquated power-sharing structure intentionally designed to inflate the political power of rural voters.

          And I’m happy to let them vote as they will. What I object to only is the way that Republicans seek to use the government to shape electoral results to their liking, and to cover up their illegal attempts to influence the vote through collusion with foreign governments.

          1. Understood. Stories about the other team justify [whatever].

            Sad.

            1. Yeah in team sports you normally immediately forget and never ever refer again to stuff the other team does because it’s unfair on the other team and just plain mean.

              1. Complaining about the other team and living in the past is certainly easier than improving yourself.

                1. Gotta learn from the past, eh? Anyone would think you weren’t proud of how he won, given the way you all react like a husband who was caught cheating getting mad whenever the wife mentions it.

                  1. Why would anyone be “proud” of any politician? It’s a very strange idea.

            2. You don’t understand a damn thing. You’re just masturbating.

              1. What a very strange response.

          2. “Trump won only because of some antiquated power-sharing structure intentionally designed to inflate the political power of rural voters”

            No. Just no. The concept of the Electoral College is that small states get some say in federal governance so that they’re not dictated to by large states. Rural don’t enter into it. Unless you want to say that places like Honolulu, Anchorage, Fargo, and Burlington Vt. are rural.

            The other thing that progressives who are bitching about the EC neglect to consider is that without it the United States wouldn’t exist. You’d get to live in a place where you can dictate to others what they can and can’t do, but it would be about the size of Ireland.

            1. The concept of the Electoral College is that small states get some say in federal governance so that they’re not dictated to by large states. Rural don’t enter into it.

              Given that “large” and “small” in this case means “large population” and “small population,” and given further that the original compromise was geographically-based precisely because of differences in early America’s economic regions, you’re quite simply mistaken.

              The other thing that progressives who are bitching about the EC neglect to consider is that without it the United States wouldn’t exist.

              My only point about the Electoral College is to rebut the commonplace statement that Ben asserted, which is that the voters voted, and that current efforts to constrain the president or somehow undermine his tenure are in some sense a subversion of popular will. Popular will spoke decisively against the president. The fact that his votes were more efficiently distributed than Hillary’s – which is the reason he won – does not change that.

              1. Usage of “decisively” here is odd. What was decided?

                Would we have less partisan rancor if words were used to mean what they mean instead of the opposite of what they mean?

              2. “Given that “large” and “small” in this case means “large population” and “small population,” and given further that the original compromise was geographically-based precisely because of differences in early America’s economic regions, you’re quite simply mistaken.”

                Ah, yes, the self assurance of the smug progressive. No, I’m not wrong. Land area has as much if not more to do with state population than rural vs. urban. Rhode Island is 2nd in population density and 42nd in absolute population. Delaware is 11th in population density and 44th in population. By your definition, both Rhode Island and Delaware are “rural”, which is laughable. Texas is the opposite, it’s 30th in population density and 2nd in population, so Texas is urban by your definition. In 1770, North Carolina had a higher population than New York, even though Carolina would have been considered rural and New York urban.

                “My only point about the Electoral College is to rebut the commonplace statement that Ben asserted”

                Bullshit. It was more than that and you know it. You referred to it as an “antiquated power-sharing system”. Using it as an excuse.

                I can’t stand Trump. But, honestly, watching the side that was preaching, pre-election, that the results of an election are sacrosanct spending the two years post-election throwing an absolute hissy fit because they didn’t like the outcome is not appealing.

              3. “Popular will spoke decisively against the president.”

                In terms of the utterly irrelevant national popular vote, Hillary only beat Trump by a couple of percentage points, and she did not have an absolute majority in the popular vote.

                You keep using that word (decisively), I don’t think it means what you think it means.

                1. Trump got 46% of the vote, which is McCain or Dukakis territory. That’s not McGovern or Goldwater, but it’s a pretty decisive rejection.

                  1. And Hillary only got 48%, so she was also rejected.

                  2. And Hillary only got 48%, so she was also rejected.

                  3. “Trump got 46% of the vote, which is McCain or Dukakis territory.”

                    If only there were such a thing as the popular vote. Hillary spent twice the money on the election that Trump did, and she spend a lot of it turning out votes in blue states she didn’t need. Could Trump have narrowed, or even reversed, the popular vote gap if he had engaged in a similar miss-allocation of resources? Who knows? And it shouldn’t matter.

                2. Her margin was just the margin in California.

                  California only had democrats running for senate which depressed GOP turnout so even the California margin is inflated.

                  1. Hey, Bob, much as your tribe hates to admit it, Californians are equal to all other Americans. A little thing we call equal rights.

                    1) Senate candidates???? PRESIDENTIAL RACES affect turnout more. Which is why mid-term turnout is so much lower … unless voters want to punish the Republicans like this year’s blue wave.

                    2) Nearly TEN MILLION voted against Trump nationwide

                    3) He got a record number of “anti” votes, voted AGAINST Clinton, not for Trump. If Progressives gain even more power in 2020, we can thank the Trumpsters for that too

                    3) He won the Electoral College by …. 39,.000 voters!. Out of how many?

          3. Politicians politic. But if there wasn’t anything to it then it wouldn’t get any traction from the voters. But the facts do show that there was a basis for the the congressional investigation:

            1. Dead Americans.
            2. Explanations by the administration that were contrary to the facts, i.e. It was all a spontaneous reaction to a YouTube video when Hillary’s email showed the real facts were known.

    2. So … Ben_ has TOTALLY lost on the issue. So he WHINES that being a criminal is not THAT bad.
      Meanwhile:

      Fox’s Judge Nap says you’re full of crap, that Trump committed three crimes on Stormy Daniels alone. Says Trump can be indicted now, but not prosecuted until he leaves office — (which would obviously be immediately, no more than a week; he’d resign for the same reason Trump did, but be imprisoned.)

      Fox’s Andrew McCarthy says Trump will be indicted.

      Even Tucker Carlson has thrown Trump under a bus, saying Trump is not “capable” of being President, and has failed to keep his key promises. (Tucker did NOT list Trump’s promise to completely pay off the federal debt in 8 years — but instead has ADDED more 8-year debt than Obama added AFTER 8 years!)

      TRUMP himself said we should not trust you. You’d lie to defend him of even murder.

      Anything else?

  5. How is Trump winning (or Hillary) something of value to Russia? Wouldnt you have to prove a value such as that there was a quid pro quo between the candidate and the foreign agent? Else its an unknown which candidate would be better for Russia.

    1. Easing of sanctions on the Russian elites in exchange for, who knows, eliminated red tape for skyscrapers, an even more costly issue in nations with rampant corruption?

      1. “Easing of sanctions on the Russian elites”

        which has not happened

        1. Fortunately though given going easy on Russia (remember one talking point was how Hillary was gonna start a war with them, and “what’s so bad about business with Russia anway?”)

          Anyway even if they have “leverage” (a needless item in this transaction) Russia could never use it as if this explodes, presumably Congress would exponentiate the sanctions.

          1. Krayt
            presumably Congress would exponentiate the sanctions.

            Try again.
            Congress did it.
            The Orange Emperor REFUSED.

            Russia owns his very soul, the ONLY lender that would touch him after a dozen bankruptcies and/or business failures had EVERY U.S. bank shut him off. Write down these words: “a money launderer for Russia.”

        2. Educate yourself, Bob If it’s not too late.

          The Trump administration shocked Washington when it refused to implement new, legally mandated sanctions against Russia in January. The White House claimed there was no need for new sanctions, because the law itself was already deterring those considering doing business with Russia. Yet, since then, not only did a U.S. grand jury indict 13 Russians for fraud and other charges, but the U.S. intelligence community unanimously told Congress that Russia hasn’t stopped interfering in American democracy. Director of National Intelligence Dan Coats even testified before the Senate Intelligence Committee that the “United States is under attack.” Despite this, the Trump administration continues to stick to its claim that the situation requires no additional sanctions. This is worse than doing nothing.

          Closing one’s eyes, and covering one’s ears. does NOT make the universe disappear.

    2. I would say that undermining public confidence in America’s political system, its elections and electoral process, or in contributing to a general belief that America’s politicians are nothing more than a pack of opportunistic grifters is certainly in Russia’s interests.

      1. So then who were they conspiring with, Trump or the DNC and the establishment media? Seems to me the latter two have done exactly what you define as the goals of Russia, so contrats.

        1. TRUMP! Donald Junior PROVED it (witlessly). See the Trump Tower emails.
          And Trump’s SHAMEFUL refusal on Russian sanctions.

    3. Well, let’s do some ex post facto review, shall we? We’ve had almost two years of Trumpian foreign policy. Would you say that Russia and Putin’s kleptocrats are better or worse off than they would have been, had Hillary been elected?

      And once you have an answer to that question – how hard would it have been to predict, during the campaign, that Trump’s foreign policy would play out like it has?

      You seem to have forgotten that Trump’s team wasted no time to sit down with Putin’s team in order to reassure them about Trump’s approach to Russian sanctions. Likely in violation of the law, by the way. But no way to know in advance, sure, sure.

      1. “Would you say that Russia and Putin’s kleptocrats are better or worse off than they would have been, had Hillary been elected?” I would say definitely worse off. Clinton would very likely have put various restrictions on fracking; she was ambivalent about it and her base is very strongly against. Trump has been completely pro-fracking without any ifs, ands, or buts.
        Fracking has been a disaster for Russia and for OPEC, and a boon for the US economy. Gas prices are way down right now.
        Fracking outweighs everything else that Putin could have wanted from the US. Which is why anti-Trump people only look at everything else.

      2. ” Likely in violation of the law, by the way. ”

        Not that Logan act crap again! A law that was enacted together with the Alien and Sedition acts, and which has only been spared being struck down because nobody in a couple centuries has been stupid enough to try enforcing it?

        Anybody who takes going after Trump under that law self-identifies as a moron.

        1. LAME
          Its still the law. And NOT the Logan Act. Pay attention

          Fox’s Judge Nap says you’re full of crap, that Trump committed three crimes on Stormy Daniels alone. Says Trump can be indicted now, but not prosecuted until he leaves office — (which would obviously be immediately, no more than a week; he’d resign for the same reason Trump did, but be imprisoned.)

          Fox’s Andrew McCarthy says Trump will be indicted.

          Even Tucker Carlson has thrown Trump under a bus, saying Trump is not “capable” of being President, and has failed to keep his key promises. (Tucker did NOT list Trump’s promise to completely pay off the federal debt in 8 years — but instead has ADDED more 8-year debt than Obama added AFTER 8 years!)

          TRUMP himself said we should not trust you. You’d lie to defend him of even murder.

          Anything else?

      3. “Would you say that Russia and Putin’s kleptocrats are better or worse off than they would have been, had Hillary been elected?”

        What exactly has Trump done that has benefited “Russia and Putin’s kleptocrats”?

        Specifics please?

        After all, it was under the prior democratic president that the Crimea was seized and Ukraine invaded. Putin could just as logically conclude that Clinton’s victory was better for him.

      4. Under Obama Russia got…

        Weakening of US nuclear development as Russia violated the Inf, especially in regards to tactical nukes; Crimea; a presence in Syria and the middle east; technology delivered in an agreement w Skolkolvo which is now ingrained into the Russian weapons program; stopped armament of ukraine; rejection of Ukraine to NATO; increased energy presence in eastern Europe due to fracking limitations on federal lands from obama.

        Okay, now you do what they have gotten under trump.

        1. no shooting war over Syria?

  6. “I shouldn’t have to do research” is a weird thing for a journalist to suggest. It might not be up to the average person to look for more context on what was said, but it should indeed be something a journalist should have done.

    1. David Post is not, and at no point claims to be a journalist. He’s a law professor who occasionally writes blog articles.

      1. Sure, but when he does so, he’s acting as a journalist, and “I do not agree that I should have searched for and consulted his op-ed – or any of this other writings, for that matter – before writing the original post. I don’t buy it. ” is a terrible attitude to take.

  7. I hope there never is a special prosecutor appointed without a deadline again.

    That was the chief mistake, not giving Mueller a deadline. That is why/how he is able to suffocate Trump’s presidency.

    Way too much power to give one man.

    It is no coincidence that the report will not be published to Congress until after it’s sworn in in January.

    1. Yeah, if only Mueller was given a deadline before the election…

    2. 1. While I have no problem, in theory, about giving these people deadlines, it ignores the fact that if there IS a deadline, it gives huge incentives to people delaying and running out the clock. In other words, doing actions designed to avoid justice.
      2. It is, in fact, a coincidence that the report will be delayed past the new year. One of the big reasons (I suspect…I have no first-hand knowledge, of course.) for any delay is the Trump lied about sitting for an interview will Mueller…and this delay prolonged the investigation quite a bit. But all of these investigations (Watergate, Whitewater, Benghazi, this) take a very long time. Such is the nature of the beast.
      3. You think that it’s the investigation that is suffocating Trump’s presidency??!!!??? First off; Trump himself would disagree with you–he says that he’s been the most successful (or one of the most successful) presidents of all time in getting his agenda enacted. But to blame any problems on this investigation, rather than Trump’s own behavior. . . well, that’s . . . um, um . . . um, well; I don’t know what is beyond “delusional,” but you’re giving a pretty good example of it–whatever “it” is.

    3. It wasn’t a mistake. It was a setup.

      Rosenstein, Mueller and Comey turn out to be best buds. When Sessions recused, he basically handed the previous administration’s DOJ the opportunity to go after the current administration, and they took it.

      The only question in my mind is whether Sessions intended that result.

      1. Hey Brett they are coming to get you!!

        1. Nah, if they were going to come to get me, they’d have done it a long time ago.

      2. Rosenstein, Mueller and Comey turn out to be best buds

        Where do you get that from?

  8. Why do persist in violating the Rule of Holes? Going after Dershowitz will be as productive for you and what used to be your career as attacking Snow White. STFU.

    1. My father used to say PhD stood for “post hole digger”. He taught at the local college and put up some fences on the farm. His name wasn’t Post though.

      1. The traditional line for BS, MS, and PhD is Bull Shit, More Shit, and Piled higher & Deeper.

    2. We know it’s you Dersh.

  9. David Post, you may need to take a step back. I think your wrong on this one.

  10. If indeed the regulations allow a special “counsel” (as opposed to prosecutor) to be appointed to investigate to find out whether and how much foreign interests tried to conduct public relations relating to a US election, then those regulations need to be re-looked at. That is the job of an investigative reporter, not a government official that most of the public sees as a prosecutor investigating a crime. A system like that is ripe for abuse by the opposition party as a tool to disrupt the president’s administration, and is of little other special value. And yes, I would say this (if less stridently) even if it were a GOP-appointed special counsel investigating, say, Obama campaign ties with Iran.

    1. If indeed the regulations allow a special “counsel” (as opposed to prosecutor) to be appointed to investigate to find out whether and how much foreign interests tried to conduct public relations relating to a US election, then those regulations need to be re-looked at.

      Good god, the morons here.

      The Attorney General has the authority to investigate violations of federal law. He also has the authority to delegate that function to subordinates. In certain special circumstances, he can delegate that function to a so-called “special counsel.”

      That’s all this is.

    2. A system like that is ripe for abuse by the opposition party as a tool to disrupt the president’s administration,

      You are confused. A special counsel is appointed by the president’s own party, by definition.

      1. Unless, say, the President’s own AG recuses, leaving the decision up to a friend of somebody the President just fired, who picks as the special counsel a hold-over from the previous administration.

        1. This no-true-scotsman argument is getting pretty conovluted.

        2. Nope, sorry. You’re confused. When the president’s own AG recuses, the decision is delegated to the president’s own deputy AG. Who can pick whomever, but in this case picked someone who was not a holdover from the previous administration.

  11. Where’s the debate we were half-promised? I don’t really care about the subject, it could be the best way to grow orchids, I just want to see Dershowitz in action.

  12. Trade secrets? Really? That’s a square peg in a round hole.
    What kills me is that every plausible violation (which excludes many of the silly ones above) are the sort of things that have been historically resolved by monetary fines. You both are expending much energy on ego today, not on the subject of Trump’s liability.
    And yes, I think you did allude to an ageist criticism of the man with your “Willie Mays played too long” track – not that I care, but own it.
    And yes, you probably should have done a little work triangulating his articulated position before trying to count coup on a TV spot – that is, if you wanted us to take you any more seriously. Your level best is not that of TV talking heads.

    1. For those who are not baseball fans…if someone draws an analogy to a once-unbelievable player who was really struggling in his early 40s . . . I don’t see how that is ageist in any way. If he had talked about [fill in the name of pretty much any female gymnastic champion who tried to compete at age 30] as being a shadow of her former self, would that also be ageist? Or if he had talked about some child prodigy who was spectacular at age 8, but didn’t accomplish much after age 13? Ageist also?

      I guess I’m just not seeing it. (Of course, Post could have made other additional comments that might have shown ageism. But merely making that comparison to an over-the-hill 43 year old?) Nope, not seeing it at all.

      1. It’s the “over the hill” part that you keep stumbling over but apparently can’t see. It was a stupid insult but rather typical of Post.

      2. It’s pretty clear:

        “those of us who wanted to keep the memories of Mays in his prime, and he has become, perhaps a little unfairly, a symbol of the aging star who overstays his welcome in the public eye and who tries, unsuccessfully, to outfox Father Time.”

  13. “They would conclude… that the Mueller investigation will have somehow ‘failed’ if it produces nothing more than uncover ‘political sins’ and not indictable crimes. That is false, and it is pernicious.”

    It is false and pernicious only if one agrees that the open ended mandate from Rod Rosenstein is within the appropriate scope of a special counsel. If you think that using a special counsel as a political weapon to delegitimize the winner of an election of whom you disapprove and possibly reverse the results of which you disagree, is hunky-dory, then nothing anyone says will dissuade you, for you have convinced yourself that the end justifies the means.

    In my opinion, appointing a freelance prosecutor absent any specific crime, designating a target, and saying, “Go forth, find (or create) crimes, and prosecute (or politically damage) the target,” is little different from the “Show me the man, and I’ll show you the crime” credo of Stalin’s hatchet man, Lavrentiy Beria. Establishing a precedent of wielding criminal investigations as political weapons is corrosive to the democratic process, and it will end badly regardless of who is the target. The Mueller investigation certainly is a failure by that standard.

  14. The DNC already cleaned up the supposed email “hack” by giving that one guy the Vincent Foster treatment. I mean ummm yeah it totally got hacked online even though there are no internet traffic logs of it and the data transfer feed was that of 3.0 USB speed according to released records.

    Also DNC – pro tip here – when you are prompted to set a password that does not mean actually use “password” as the actual password. Also if some random guy can plug in an external hard drive and drop all your .pst files on it you probably need to invest some of that Clinton Foundation money in a new IT team that has some security knowledge.

    1. that does not mean actually use “password” as the actual password.

      Proof?
      Learn what hacking means.

    2. Starting by accusing the other party of murder tells everyone how seriously to take your assertions.

      The RNC got hacked as well. Nothing about how weak their security was or how they probably killed someone?

      1. So you concede that the Klinton cartel murdered Vincent Foster. Nice….

        1. You came off sounding like an idiot by spelling Clinton with a “K.” But aim higher…you could have been an even bigger idiot by spelling it “the Klinton Kartel.” In other words; if you’re gonna try and act like a jackass, own it and go the Full Monty.

        2. Tracking the craziness you’re laying down doesn’t mean I believe it, dude.

  15. One thing that everyone seems to forget is that Comey wanted a special counsel and manipulated things to make sure one got appointed. He released confidential documents through a third party and used that to push for a special counselor. That should be worrisome to a lot of people. Whether there was more far reaching manipulation regarding Mueller’s appointment and direction is something we will likely not find out for years, if then.
    Honest or dishonest it is hard to tell right now about Mueller, but the reason for this mess starting is not a good sign, nore is the apparent dislike of the President by the guy that appointed the the special counsel and gave him the scope of what he could investigate comforting in any way.

    1. Comey fired himself! Who knew?

      the guy that appointed the the special counsel and gave him the scope of what he could investigate comforting in any way.

      YOU say that a special counsel, within the FBI, should ignore any crimes he finds. On what basis do you assert that?

      1. Um, I never said he should ignore other crimes he finds, but those should be referred to other agencies if they are outside the scope of his investigation. What should not happen is someone running around trying to find whatever they can on the target of their investigation.

        I apologize if I was no clear, but I also never said Comey fired himself. I think you may be reading more into what I wrote than is there.

        1. Coyote315, One More Time

          Mueller Appointment.

          (a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States
          Department of Justice.

          (b) The Special Counsel is authorized to conduct the investigation confined by then-FBI
          Director James 8. Comey in testimony before the House Permanent Select Committee on
          Intelligence on March 20, 2017, including:

          (i) any links and/or coordination between the Russian government and individuals
          associated with the campaign of President Donald Trump; and (((found over 100, Trump said zero)))

          (ii) any matters that arose or may arise directly from the investigation; and

          (iii) any other matters within the scope of 28 C.F.R. ? 600.4(a).

          (c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is
          authorized to prosecute federal crimes arising from the investigation of these matters.

          Anything else?

      2. Comey knew he was going to be fired sooner or later; EVERYBODY wanted his scalp after 2016, and he was insubordinate from the very beginning of the Trump administration. By his own testimony he started laying the groundwork for his firing to result in an independent counsel well before it happened, by illegally leaking FBI documents to a friend, and retaining private copies of his own work product.

        1. (yawn) Wacky as ever …. no proof

    2. everyone seems to forgeIt never happened. Source?

      He released confidential documents through a third party and used that to push for a special counselor.

      The investigation had begun several months earlier — which Comey had been fired for refusing to obstruct. What he released was not confidential. Trump had tweeted a LIE hinting that he had ILLEGALLY taped their conversation.

      Anything else?

    3. We all know that Mueller is just a joke. Only the liberal lame-stream media pays any attention to him. Any time I load the Clinton News Network it has some headline about Russians or something about how Trump is going to be impeached because of RUSSSSIANNNS.

      It is one thing to actively hack vote counting devices or having secret agents stuffing ballot boxes (but the Dems stuff them all the time….just think back to the notorious 104% voter turnout in some Philly districts) but if really all that Russians did was flood Twitter with pro-Trump content that really isn’t a crime.

      Mueller was appointed to find a crime that didn’t even happen. He is nothing more then a political hack serving a political purpose. All he has found is a guy who cheated on his taxes and a few more guys who made inconsistent statements to him and, well, that is called perjury (unless you are Bill Clinton). But those are mostly manufactured “crimes”. That is why his so called “investigation is languishing now into what month 16?

      Mueller is a hack and Congress should shut him down before the New Year. Cut off his funding and force him to file a final report. If there is a real crime at hand the Justice Department can handle it from there.

      1. Trump doesn’t seem to think Mueller is a joke, based on his increasingly frequent panicked tweets.

        I don’t know what he’ll find about Trump specifically, but I’d guess financial skillduggery and conflicts of interest with the Russians.

        Mueller is a Republican appointed by a Republican who is working for the Trump administration. His purpose is to investigate Russian collusion, not whatever you’re talking about. And the pace of his investigation is pretty fast compared to other investigations of the type.

        Your throwing out Democratic voter conspiracies (ironically, considering NC), and Bill Clinton show how hard you’re looking away from what’s going on.

        Your partisan scenario-building is one step from Qanon. Good luck with that.

        1. Yeah (((Muller))) is a “republican”. Do you know how easy it is to become a republican or democrat? Just visit your local DMV.

          You are a joke just as (((Muller) is.

          1. What do the brackets around Mueller’s name signify?

      2. Hey, loser!

        Fox’s Judge Nap says you’re full of crap, that Trump committed three crimes on Stormy Daniels alone. Says Trump can be indicted now, but not prosecuted until he leaves office — (which would obviously be immediately, no more than a week; he’d resign for the same reason Trump did, but be imprisoned.)

        Fox’s Andrew McCarthy says Trump will be indicted.

        Even Tucker Carlson has thrown Trump under a bus, saying Trump is not “capable” of being President, and has failed to keep his key promises. (Tucker did NOT list Trump’s promise to completely pay off the federal debt in 8 years — but instead has ADDED more 8-year debt than Obama added AFTER 8 years!)

        Anything else? (lol)

  16. I’m sorry, but I don’t see how you can say that your original post was not addressed to the age of Messrs. Dershowitz and Mays. Here’s what you wrote:

    Willie Mays, who has as good a claim as anyone on the title of Greatest All-Around Ballplayer Ever, spent the last year or so of his illustrious career stumbling and bumbling around center field for the NY Mets. It was deeply embarrasing for him, and hard to watch for those of us who wanted to keep the memories of Mays in his prime, and he has become, perhaps a little unfairly, a symbol of the aging star who overstays his welcome in the public eye and who tries, unsuccessfully, to outfox Father Time.

    1. WHOOOOOOOOOOOOOOOOOOOOOOSH

  17. Seems that your description has Clinton as having committed a crime, as well.
    Mueller is no longer working on a Russian influence project. He is working to find any kind of crime possible for anyone and everyone connected to the trump admin and campaign.

    1. And you know this because Mueller keeps uncovering crimes whenever he looks at people who were in the Trump campaign?

      I got bad news for you there…

      1. It’s DC. You’re going to keep uncovering crimes no matter which direction you look in.

        Even if they’re real crimes, the selective attention can still be a form of corruption, like a police chief who only enforces traffic laws if the offender is a political enemy. That Manafort was a crook was something the DOJ knew back in 2014. They didn’t care until he worked for the Trump campaign. THAT is a form of corruption.

        1. Trump hired a lot of crooks.

    2. And there are a lot of crimes committed by anyone and everyone connected to the trump admin and campaign.

    3. He is working to find any kind of crime possible for anyone and everyone connected to the trump admin and campaign.

      That’s what his appointment directs him to do!

      Somebody has totally manipulated you.
      Sorry, but there are tens of millions of victims like you.

      Educate yourself: Mueller Appointment.

      Left – Right = Zero

  18. That’s a serious reach on many of those laws, applying them to situations which they’ve never been applied to before. And if you’re going to apply them in these unique situations, will they been applied selectively, or will they only be applied against Trump?

    For example, did Putin give Obama “space” prior to the 2012 election? Space that Obama specifically requested? Was that an item of value?

  19. Dershowitz was responding in a live TV interview, so he did not have the luxury of composing a careful response. Responding to that by writing an article at one’s convenience gives the writer an unfair advantage.

    Second, generally, the shorter one’s statement, the more it must leave out. Whoever writes the longer statement (in this case a long-ish blog post responding to a brief TV interview) will therefore seem to “win” against the person making the shorter statement.

    The debate became more even once we were looking at written article (the op-ed) vs written article (the latest posting).

    But reading the latest round leaves me dissatisfied, because both parties are mostly speculating and presenting hardly any reliable facts.

    1. But one is presenting his speculation as a fact. The other is careful to note the difference between the currently known, and the as-yet-unknown.

      That is, in fact, the fundamental basis of the disagreement.

    2. Dershowitz was responding in a live TV interview, so he did not have the luxury of composing a careful response. Responding to that by writing an article at one’s convenience gives the writer an unfair advantage.

      Given that the last time Dershowitz took the time to sit down and write a careful article at his convenience, he wrote, “People are being mean and not inviting me to parties on Martha’s Vineyard,” I think it’s a kindness to him to not hunt down longer things he said.

    3. Dershowitz was responding in a live TV interview, so he did not have the luxury of composing a careful response. Responding to that by writing an article at one’s convenience gives the writer an unfair advantage.

      So, instead of being bat-shit crazy … he’s bat-shit irresponsible!

      Trump did tell us you would defend him from even murder, in broad daylight, with witnesses.

  20. “I’d like to know if that actually happened, crime or no crime”

    Well now that we know just what is sufficient to unleash a special prosecutor with almost unlimited powers on a candidate and an administration.

    I somehow thought fishing expeditions like that were the purview of Congress and the press.

    We all know why the special counsel was unleashed on Trump: to protect the FBI, the DOJ, CIA from being caught out meddling in the election themselves.

    Russian collusion isn’t the danger, whether the well documented collusion with Hillary’s campaign and the Russians, or the fantasy collusion with the Trump campaign.

    The collusion that is a real danger to our republic is the Clinton-DNC-FBI-DOJ-CIA collusion. I know Hillary was peripherally involved investigating Watergate, but I’m impressed she took such thorough notes on how to corrupt our agencies to obtain and keep power.

  21. It is insipid and frivolous to list off vague and overly broad federal statutes that someone could conceivably have violated, when it’s nearly impossible to prove a negative. See the book, Three Felonies A Day.

    Instead, the pertinent question is (a) whether there was or is verified evidence and a sound basis warranting surveillance and eventually a special counsel, and then, (b) whether the potential conduct at issue is of a type that should justifiedly be investigated and prosecuted, taking into account prosecutorial norms and standards which uphold the rule of law and the equal administration of justice. If a blatant double standard is zealously applied, then you just might have a witch hunt.

    “did Trump campaign officials in fact use information that was known to have been unlawfully obtained by a foreign government and which they knew was being made available to them via secret transactions for the express purpose of influencing an American presidential election?”

    Maybe . . . but is there any evidence that they did? Curiously, on the other hand, we do know that the Clinton campaign did in fact use information obtained from a foreign government which they knew was being made available to them via secret transactions for the express purpose of influencing an American presidential election.

    The bits about trade secrets and “goods, wares or merchandise” is just blatant ignorance of the meaning of these terms.

    1. Finally . . “mischaracterization . . .that the Mueller investigation will have somehow “failed” if it produces nothing more than uncover “political sins” and not indictable crimes.”

      I actually agree with Post here to an extent. It’s not a failure to have an investigation and uncover no evidence of indictable crimes. But, in that case, it would be a failure if the results of the investigation do not spell out this finding, effectively exonerating its targets and subjects as to the core inquiry.

      It will also be a failure if the commencement of the investigation from the start (pre-dating Mueller), or the ensuing conduct of the investigation thereafter, turns up any prosecutorial misconduct or abuses of constitutional rights, or if the conduct as a whole represents a blatant double standard and a miscarriage of the equal administration of justice.

  22. Post wins. Dershowitz loses.

    Very truly yours,

    The Rule of Law

  23. David,
    I was tenantively with you on the first two posts. This one was awful. Like sovereign citizens awful.

    1. I found NOVA Lawyer’s 12:52AM post rather clarifying as to Post’s thesis.

  24. Regardless of this debate, I do hope Comey is remembered as a very tall inmate, rather than FBI director.

  25. “It is unlawful for foreign nationals (and, by extension, foreign governments) to contribute, directly or indictly, “anything of value” in connection with a federal, state, or local election, and it is unlawful for anyone to “solicit, accept, or receive” such a contribution. 52 USC ? 30121.”

    Christopher Steele?
    Perkins Coie?
    DNC?

    Maybe being paid means it’s not a contribution.

    1. Maybe being paid means it’s not a contribution.

      Not sure if you were confused or attempting sarcasm, but in fact, that’s exactly the case.

      1. This really underscores what a sham this whole deal is.

        Apparently, all of outrage and concern about foreign Russian interference in the election was fake, not genuine, a mere ruse. Otherwise, the Steele dossier would be a focus of that concern.

        So this isn’t about foreign interference, but instead it is about parsing the vast body of federal statutes to see what can be pinned on the Trump campaign. You might even call it a witch hunt.

        The Clinton campaign colluded with Russians to interfere in the election, and the Obama administration FBI, NSA etc was even in on the game, using the fruits of that Clinton-Russia collusion as the basis for spying on political opponents. The entire hoax was propped up by countless illegal leaks and the dishonesty of the allied mainstream media, until it became a special counsel appointment and the shit show we have today. And we are supposed to accept all of this because, for instance, it’s OK that Clinton colluded with Russians if she paid handsome sums for it.

        Meanwhile, Trump paid off a porn star for an NDA. Wait — no, that would be perfectly legal. So Trump must not have reimbursed the payment in any way, or else the case against him would fall apart.

        1. Yeah it’s a complete farce that Clinton’s campaign isn’t under investigation just because it didn’t break the law while Trump’s is under investigation just because it probably did did. What a joke!

          1. This investigation wasn’t about specific crimes. Remember? It’s a counter-intelligence investigation into Russian efforts to interfere in the 2016 election.

            1. So your assertions that Clinton didn’t break the law, and Trump probably did, while false, are also irrelevant.

              Anyway, onto the irrelevant statement. As the media has gleefully reported, Trump has been paying off negative stories about himself for decades. It’s about marriage, kids, career, reputation, etc. So it’s clear that he would have done this anyway, regardless of the campaign, which means the case falls apart.

              1. “So your assertions that Clinton didn’t break the law, and Trump probably did, while false, are also irrelevant”

                Clinton isn’t President, so anyone in the DOJ can handle that investigation. Trump is, so that part of the investigation is Mueller’s.

                Meanwhile, of the course, the FBI has continued to monitor the Russians (and other foreigners) that fall under its purview… including (gasp) the Americans who interact with them.

                1. This is about the Mueller investigation. Pay attention.

              2. A guy who pays to kill stories like that is a massive blackmail risk, and being a crook, he couldn’t resist doing it crookedly. I mean, who knew that the right would abandon all pretence at adherence to any sort of ethics and morality, particularly the Christian family values crap they whipped homosexuals and single mothers and Democrats who committed extramarital affairs with, and he needn’t have bothered?

                1. Yes, extramarital affairs are immoral.

                  Now back to the issue at hand, so you admit that Trump would have done this outside of the campaign? Then it is not a campaign finance violation, period. Perfectly legal.

                  Funny how years of screaming about the nonexistent, fake hoax of Russian collusion turned into “he had sex with porn star.”

                  1. It’s BOTH. And more,

                    And if Stormy was legal, why did Trump commit FRAUD in how he reported Cohen’s reimbursement?

                    1. Fraud to conceal embarrassing sexual allegations? Maybe, depending on the facts, but you’re assuming too much.

                      Fraud to conceal a pittance campaign contribution? No.

                    2. Fraud to conceal embarrassing sexual allegations?

                      YOU are assuming too much.

                      Trump reimbursed Cohen over several months, FRAUDULENTLY reported as monthly retainers and legal fees …. which then required him to reimburse Cohen’s taxes in income-that-was-not-really-income. By a President who has never been bright.

      2. So if the Trump campaign paid Assange to release the data, it wouldn’t be a crime?

        You might want to go back to the drawing board on that one

    2. Maybe being paid means it’s not a contribution.

      Maybe!

      1. No maybe about it, that’s exactly how it works, or else every time a campaign purchased a ream of paper they’d have to report the value of the paper as a “contribution.”

        1. LAME

          Fox’s Judge Nap says you’re full of crap, that Trump committed three crimes on Stormy Daniels alone. Says Trump can be indicted now, but not prosecuted until he leaves office — (which would obviously be immediately, no more than a week; he’d resign for the same reason Trump did, but be imprisoned.)

          Fox’s Andrew McCarthy says Trump will be indicted.

  26. Shorter David Post: Professor of Law ironically says that he shouldn’t have to do research before stating an opinion; also mangles his primary job, communication, in that the analogy he meant to imply age based incompetence was misunderstood. Blames message receiver.

    1. Not quite.
      Commenting about X does not imply a responsibility to research Y.

      1. You can’t reframe this one. It was a failure on Post’s part, which he tries to handwave away by saying, in essence, “your standards don’t apply to me.”

        Further, you don’t find it ironic that a law professor, whose job it is to do research and provide commentary, doesn’t do minimal research on the topic at hand (Dershowitz’s opinion on Mueller) that he’s supposed to provide commentary on? I imagine he’d give a failing grade to even an undergrad student who submitted a paper with such minimal effort.

        1. James Pollock is entirely correct. If the topic is “Batguano crazy things Dershowitz says on Faux News,” then the grade should be assigned based on that topic, and not “The Life and Times of Dershowitz including stuff he wrote elsewhere as a backup plan.”

          1. Stating he is correct, doesn’t actually make him correct. The topic here, also, was Dershowitz’s stance on Mueller, not just what he said on Fox News. Post made the singularly large mistake of assuming that one short interview was all Dershowitz had to say on that topic, and built a response around that, blithely ignorant of what else there may be. That is a failure of responsibility on Post’s part.

            By applying the standards that Post would apply to his students, I show that Post is wrong by his own standards.

            Basically, Post went “Nyaa” and like lawyers are wont to do, is pettifogging, to cover for his failure to do a simple internet search. In fact, a high school freshmen is expected to spend a few minutes doing research upon the assignment of writing a paper. So, next time you’re at work or in school, take one short interview and extrapolate from there, ignoring other easily explored avenues for clarification, and see how far that gets you.

            1. ” Post made the singularly large mistake of assuming that one short interview was all Dershowitz had to say on that topic”

              Or, he saw the one short interview, and wrote about it. Did you review everything Post ever wrote before commenting on his actions? No? Because you’re commenting about what he said THIS time, and not about other things he may or may not have written on other occasions?

              “In fact, a high school freshmen is expected to spend a few minutes doing research upon the assignment of writing a paper”

              That depends on who’s doing the assigning. Most writing classes are taught in classrooms that don’t have Internet access, because they don’t have computers in them, because computers are expensive and schools have limited budgets. (You don’t have to believe me just because I taught writing to college freshmen.)

              1. You’re really, really, reaching. Grasping at straws really. Then trying to boomerang it around on me, because at issue here isn’t my commentary on Post’s writing, but Post’s commentary purporting to summarize Dershowitz’s positions on a singular topic, which was, verily, incomplete to say the least.

                I also see your dodging the standards we hold law professors and their students too, which is minimal research, to whit, would be an internet search which would readily reveal that *surprise* Dershowitz wrote more on a topic than what he said in a short TV interview segment.

                And I’ve taught college students as well. If I asked them to do a response paper, the minimal standard is to have them look up what to properly respond too. Said papers aren’t done IN CLASS, where lack of internet access would matter. There are computer labs and wifi capabilities elsewhere that their tuition dollars pay for. When was the last time you were asked to do a paper IN CLASS, rather than as a homework assignment? Classroom time is for lecture and debate.

                Now, see how you’re really trying hard to defend Post on this one, and you’re just making him look worse in the long run.

                1. “You’re really, really, reaching.”

                  If that’s how you refer to pointing out that you’re guilty of what you’re accusing someone else of, then yes, I did that.

                  I also see your dodging the standards we hold law professors and their students too, which is minimal research”
                  Once again, an assignment to analyze X does not imply a responsibility to research Y. The discussion of a TV intervew does not imply looking for newspaper op-eds. “Minimal research” might include determining if one had seen the entire TV interview.

                  If I write out a comment saying “Gee, person X mispronounced the word (x) when interviewed on X Network”, minimal research would be learning all the correct pronunciations of (x), not searching to see if person X ever pronounced it correctly.

                  Gee, I guess the last time I was asked to write out an essay response with no access to the Internet was… the bar exam.

                2. I also see your dodging the standards we hold law professors and their students too, which is minimal research,

                  I expect that law review articles written by law professors and their students will be heavily footnoted. I expect that legal briefs written by law professors and their students will be fully Shepardized. I don’t expect that when law professors and their students share recipes for oatmeal cookies or comment on the amazing ending to the Patriots game or blog about something they saw on television that they will do any more research than anyone else.

  27. Partisans of one flavor have already decided that Mueller cannot possibly uncover any wrongdoing by anybody. Partisans of the other flavor have already decided that he has, in fact, done so.

    Mueller was brought in to counter the notion that if the DOJ did the investigation, the results might be contaminated by the President’s self-interest in finding no Russian activities. Mr. Trump has, at pretty much every opportunity, shown this to be a valid concern, and we got the past example of the Nunes-led “investigation” that discovered nothing except that Mr. Nunes desperately wanted to find nothing.

    So, we wait for Mueller to finish. A substantial portion of the population doesn’t care, and another substantial portion of the population cares but already has the conclusion in mind and won’t tolerate anything that counters the conclusion they’ve already reached. President Trump hopes that by the time Mueller finishes, the group that doesn’t want to hear about it because they’re not interested, plus the group that doesn’t want to hear about it because the truth runs contrary to their preference, combines to form a majority.

    1. “So, we wait for Mueller to finish.”

      Part of the punishment, so to speak, is the process. A solid bet to make is that Mueller will drag this out as long as possible.

      Your dismissal of Nunes’ investigation, which revealed things like the happy lovers’ text messages and the conflicts of interests, is rather unwarranted. It was all part of the larger story so we can get a full picture.

      1. “Part of the punishment, so to speak, is the process”

        Maybe don’t do the crime if you don’t want to be investigated for the crime

        ” A solid bet to make is that Mueller will drag this out as long as possible.”

        Trump’s been dragging it out all along, so I guess we’ll have to add to the above “Also, don’t drag out the investigation if you think the investigation continuing is interfering with your interests.”

        1. “show me the man, and I’ll show you the crime.” You on to look up who said that, and see if that might apply in this situation.

          That said, you honestly think Trump is the one dragging out the investigation? Okay, that one made me do a double take. He never wanted it, and said that we got it because Sessions was/is a coward (correctly I might add), and yet you think he’s the reason it’s been dragging on and on. Based on what evidence? I legitimately want to know how someone can hold a view of reality so radically different than my own.

          1. “That said, you honestly think Trump is the one dragging out the investigation?”

            It hasn’t exactly been done in secret.
            Hey, remember when Donnie tweeted out “I never wanted this investigation, but since I’m innocent, I want anyone the special prosecutor wants to talk to to talk to him as quickly as possible, and be completely honest, and I include myself in that. I’ll go talk to him wherever, whenever he wants, for as long as it takes.” and then he actually followed through?

            ” I legitimately want to know how someone can hold a view of reality so radically different than my own.”

            Because you’re wearing partisan goggles? That significantly impair your vision?
            Just a guess.

  28. “The only time ageists comment on my advanced age is when they disagree with conclusions and don’t have good responses on the me merits.”

    Is this the same Alan Dershowitz who criticizes political correctness and those who feel offended too easily? Wow. What a thin-skinned fellow he turns out to be.

  29. Funny how Trump paid for silence on an alleged consensual affair . . . while members of Congress used taxpayer funds to settle allegations of misconduct, non-consensual. Which is more problematic?

    1. Yeah, WHATABOUT WHATABOUTISM???!!!

      1. What about equality under the law?

        1. When will you accept it?

  30. “He said what he said, and an audience of many millions of people – no more than a handful of whom, surely, had read his op-ed – heard what he said.”

    What a shitty and brain dead excuse. You’re a God damn professor. If your students made such a claim I’d hope you would eviscerate them.

    TDS has made your arguments worthless. I read his piece. It was linked in many aggregates from drudge, real clear politics, and believe even CNN and wapo covered the extended op. You’re a disgrace mr. Post.

    1. Hey, Jesse, did YOU read his op-ed?
      I didn’t think so.

    2. What a shitty and brain dead excuse. You’re a God damn professor. If your students made such a claim I’d hope you would eviscerate them.

      Are you under the misapprehension that law students get graded based on blog posts they make on public events?

      1. ^^THIS

  31. “What a shitty and brain dead excuse. You’re a God damn professor. If your students made such a claim I’d hope you would eviscerate them.”

    … assuming they prefer a different political party be in charge of running the government, I mean. If they have the same preference, then anything they say would be fine, of course.

  32. I stopped reading when you falsely claimed you were not commenting on his age. You were, very directly, commenting on Mays’ declining performance *at the end of his career*. You said, “[Mays] has become?a symbol of the aging star who overstays his welcome in the public eye and who tries, unsuccessfully, to outfox Father Time.”

    I don’t know why you would tell this falsehood, that you were not commenting on his age, when you very clearly did. But it made me uninterested in what else you had to say, because I’d have to put too much work into verifying whatever else you offered, given you’ve proven yourself to not care much about clear facts.

Please to post comments

Comments are closed.