To Indict Or Not To Indict? That Is the Question.

Garland's dilemma.

After nearly seven years of Trumpamania, I have become immune to stories that Trump will be indicted. Yet, the most recent DOJ filing suggests that there is a roadmap to indict Trump for (among other charges) obstruction of the investigation.

In the past, I have considered Garland's choice about whether to indict Trump for insurrection based on January 6. Seth Barrett Tillman and I wrote an article on this issue. But the Mar-A-Lago allegations are different. These charges concern conduct that arose after Trump left the White House, and there is no obvious constitutional defense (if Nixon v. GSA is on point).

Still, Merrick Garland faces a dilemma. If DOJ indicts Trump, then Trump may see the presidency as his (literal) get-out-of-jail free card. And the prosecution of Trump could galvanize his supporters, leading to his re-election. On January 20, 2025, Trump could order the Attorney General to dismiss the prosecution (assuming his AG gets confirmed). And, he could pardon himself. (Brian Kalt, please call your office.) Perversely, the decision to indict Trump could pave the way for Trump never being convicted of this offense.

And, of course, a self-pardon would not affect a conviction in Fulton County, Georgia. Though, I think the President could not be incarcerated during his time in office.

To indict or not to indict? That is the question.

Comments

[DaivdBehar]

Lawfare is the misuse of tax funds to attack political opponents. It is tax fraud. The lawyers who do it must be arrested, tried and sent to federal stir. I am including the impeachment of Bill Clinton. His real crime was to raise taxes on the rich. They retaliated misusing tax funds for partisan political attack.

[DaivdBehar]

They consumed 1000 hours of Clinton's time for his defense. That time should have been spent on Al Qaeda. Result of Republican lawfare, which is tax fraud? 9/11.

[Agammamon]

Yes, of course. The difference between 9/11 and no 9/11 is less than 1,000 hours of a single person's time.

[Reallynotbob]

You should take this up with the Baptists, too. And other churches known for stumping from the pulpit.

[santamonica811]

1. If a candidate is convicted in state court, what constitutional provision makes you believe that he must be released from custody upon assuming the presidency? Or is there a non-Constitutional reason (ie, some federal law)? If we found out that, in fact, Trump could not shoot someone in the middle of NYC without criminal exposure, are you saying that his life-without-parole sentence would be voided as a matter of law if he were to be reelected? That the sentence would remain, but that he got an actual "Get out of Jail [temporarily]" card that would be valid for the 4 years he held office, and then back to the pokey for him?
2. If Trump is reelected, it will of course be in 2024. Two full years from now. What on earth makes you think that a (federal? state??) prosecution would not happy more quickly, and that the trial would not have been held long before a Nov 2024 date? Given your hypo, would not a prosecutor, and any non-corrupt judge, move towards a timely trial? If for no other reason than to give Trump a chance to be acquitted before voters would have to cast their ballots.

I feel like I'm not understanding some or most of your gravamen.

[santamonica811]

would not happy = would not happen
[sigh]

[NOVA Lawyer]

I feel like I'm not understanding some or most of your gravamen.

Because his post is typical for him: nonsense.

Yours is a good deep dive into why it is nonsense.

[Martinned]

Surprisingly, I think Josh is right about this. Somehow the supremacy clause must mean that the states can't frustrate the exercise of Federal power by locking up the person that has to exercise that power. When it comes to people who are replaceable, like some random FBI agent, I don't think that works. But the President is the only person who can exercise the powers of the President, and putting him in (state) prison would prevent that, or at least make that more difficult. Hence: supremacy clause problem.

[SRG]

I suppose a practical way out would be for the incoming president to be impeached on his first day - there is nothing to stop the House from impeaching a president for state crimes, after all.

Alternatively, under 25A, the VP can supply written confirmation that the president "is unable to discharge the powers and duties of his office" on account of being in chokey. I don't think the VP can be compelled to do so but he has a strong incentive to do so.

[Brett Bellmore]

I can't buy that. The Constitution explicitly gives members of Congress quite limited immunity in that regard; Are we supposed to believe that Presidents got greater immunity than members of Congress, by mere implication?

[Martinned]

I'm confident the president can be prosecuted and convicted by state authorities while he's in office. And he can be fined too. But actually locking him up would make it pretty difficult for him to, say, discharge his duties as commander in chief. And letting states influence the President's ability to command the army seems like putting the US system of government upside down. So I think that the unavoidable implication is that any prison sentence that the President is convicted to before or during his term in office will have to wait until his term in office ends.

[Martinned]

Of course, the following this line of reasoning a more difficult question arises when you get to other Federal office holders who hold an individual appointment. The Secretary of State? The Justices of the Supreme Court?

The former can be replaced, and the latter can work with 8 while the 9th is in prison. But it still feels odd in both cases. Should a state be able to (de facto) influence who is Secretary of State, or who rules on important cases before SCOTUS?

Let's just hope that this question remains academic.

[Reallynotbob]

I think you're seeing shadows where none exist.

If a State successfully prosecutes a sitting Justice for murder, the Justice goes to prison, and his/her replacement is nominated by the sitting President. There is no principle of "non-influence." Indeed, in matters not reserved to the federal government or legislated by federal statute (and therefore within the scope of preemption) the powers are reserved to the States. Murders not involving interstate travel or scheme fall within state jurisdiction.

I agree with SRG that for the President, incarceration would likely trigger the 25A procedures.

[Noscitur a sociis]

I'm not sure I follow. Why would a justice's conviction create a vacancy for the sitting president to fill?

[Reallynotbob]

Article III Section 1 says justices hold their offices "during good Behaviour"-- which I have always understood to protect their offices except where they would have been convicted of an impeachable offense or are unavailable to perform their duties. Is your argument that Congress would also need to impeach the Justice based on the murder conviction? I guess I don't know if history has ever resolved that.

[Martinned]

Yes, a Justice would for sure have to be impeached to be removed from office. A criminal conviction is neither necessary nor sufficient for them to lose their job.

[Martinned]

If a President is convicted of a crime something might be done under the 25th Amendment. But that would not be automatic. It depends on independent actions by the President, the Vice-President, and/or the cabinet. I don't see how any of these people can be obligated to trigger the 25th amendment by something done at the state level.

[Ridgeway]

"I'm confident the president can be prosecuted and convicted by state authorities while he's in office. And he can be fined too. But actually locking him up would make it pretty difficult for him to, say, discharge his duties as commander in chief. And letting states influence the President's ability to command the army seems like putting the US system of government upside down. So I think that the unavoidable implication is that any prison sentence that the President is convicted to before or during his term in office will have to wait until his term in office ends."

OLC has, since 1973, taken the position that a sitting President may not be indicted or prosecuted prior to impeachment and removal.

https://www.justice.gov/sites/default/files/olc/opinions/2000/10/31/op-olc-v024-p0222_0.pdf

Basically it says the President is sui generis in this respect.

I'd bet dollars to donuts that this interpretation would prevail.

[SRG]

What if the incoming president were already locked up? Let's say he runs his campaign from state prison and wins. Does the state have to release him? What would happen if the state refused to release him? This is fun to consider.

[Martinned]

That's interesting. That memo adresses many arguments made in this thread.

As far as I can tell, based on a quick skim, the conclusion hinges on the assumption that the President would have to spend at least some time in court himself, and that that would get in the way of his other duties. Colour me sceptical that the court would go along with that, particularly if it is generally willing to recognise a privilege against personal appearance.

(Of course, any predictions about what a court would do are from behind a veil of ignorance, given that this would by assumption be a state court, and US state courts contain all sorts of crazies, including a fair share of partisan crazies. If someone is elected to a job that involves them presiding over trials, I'm not going to hold my breath that they're going to do a President any favours if the President is from the wrong political party.)

[SRG]

I note that the Constitution itself is silent on the matter - it's assumed that a sitting president would be removed via impeachment and conviction, but there is nothing that addresses what to do with a president already convicted and imprisoned prior to election, or who is convicted by a state court. This is the kind of thing that should have been remedied by a later constitutional amendment - 25A only tangentially addresses the issue. What's a poor textualist to do? And I'm not sure that the Federalist Papers offer any further enlightenment (though I lack the intimate knowledge to be sure. I assume others here do have the requisite knowledge.)

There are a number of practical issues. Suppose it's determined/amended that a custodial sentence DQs a candidate, and candidate Y is convicted of a crime where the sentencing range is 2 years parole to 5 years imprisonment. Depending on the political bias of the judge there may be a non-penal incentive to pass sentence accordingly. Or suppose that an amendment says that a conviction for a felony is a DQ - and now a DA can decide whether to go for a felony or misdemeanour conviction depending again on personal bias.

[John F. Carr]

I think it's unlikely that a trial would happen within a year of indictment. On a normal schedule the appeals would certainly be unresolved.

Is anybody else bothered by the unrealistic speed of the hanging in the country hit "The Night the Lights Went Out in Georgia"? A small town judge wouldn't even have jurisdiction over a capital case. Just me? OK.

[ah....Clem]

OT:

Well, "The Night the Lights Went Out in Georgia" is one weird song.

The narrator finds out her brother's wife has been sleeping around and murders the wife and her lover. When her brother shows up with a gun to find his wife already dead, he's arrested, convicted, and sentenced to be hanged. Meanwhile, the narrator keeps her mouth shut and let's her innocent brother hang.

And the weird part is that somehow this is all *the lawyer's* fault, or the judge, or anybody but her.

The roots of southern, white grievance go deep.

[Noscitur a sociis]

From what I can tell, capital cases in Georgia are tried in superior court, some of which do seem to sit in fairly small towns:

https://georgiasuperiorcourts.org/find-my-local-superior-court/

[NOVA Lawyer]

Self-pardons are not a thing.

[not guilty]

That is unfortunately an unresolved question.

[NOVA Lawyer]

I simply cannot believe the Supreme Court (or Congress or the American public) would go along with making the President an unaccountable king.

Aside from repudiating the principles set forth in the Magna Carta and being grammatically questionable, I find the tension between the supposed "unlimited" nature of the pardon power such that a President could pardon himself conflicts with other provisions of the law.

Article II, section 4: "[The President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

Article I, section 3, clause 7: "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law."

This says to me that the Constitution structurally contemplates that the President "shall" be subject to indictment, trial, judgment and punishment according to the law after impeachment.

The only reasonable argument that would still allow a self-pardon is that this directive ("shall be") only limits the pardon power in cases of the impeachment of the President. But this doesn't seem reasonable. The clause contemplates prosecution, conviction, and punishment of the President after impeachment for crimes he committed. The pardon power construed to allow a self-pardon nullifies that express Constitutional grant of the power to prosecute, convict, and punish a President after impeachment.

Particularly when combined with all of the principles of democratic self-government that militate against self-pardons (not a king, no man judge in his own case, etc.), these textual provisions would likely be dispositive.

Otherwise, what we have is an authoritarian so long as the elected President wishes to be an authoritarian and has sufficient support of the right people with guns. The President could order all opponents killed, including the Senators who would convict him in an impeachment trial, and pardon all involved in the crimes as well as himself. This is nonsense.

At some point, the simple-minded notion of "no limits!" must deal with common sense.

Add to all this, there is no good reason to allow a President to pardon themselves. What purpose is served by allowing self-pardons?

Yes, it is technically an open question. It will remain one for the foreseeable future as there are enough sane Americans that they will not elect a convicted felon (which, if that turned out to be Trump, he would have bee convicted for abusing the privileges of his office, no less). If it becomes necessary to test the theory, Benjamin Franklin will know the answer to his famous "if you can keep it."

[Noscitur a sociis]

By that logic, the president couldn't pardon any other government officer either, which seems clearly incorrect.

[NOVA Lawyer]

That does not follow, actually. The point is, with respect to the President, the Constitution provides that he shall be subject to prosecution, etc., but if he pardoned himself prior to conviction in impeachment proceedings, which would seem inevitable if self-pardons are a thing, then that clause is rendered pointless.

I guess, technically, there is a possible world in which a President was being impeached for a crime that would result in prison and self-pardon is available, but the President would not self-pardon. (And, to the objection that a self-pardon may increase the likelihood of conviction at the impeachment trial, pardons don't have to be publicized, so the President in this hypo could self-pardon with witnesses, but keep it in his pocket until after trial.)

The "shall be subject to prosecution" etc. is uniquely ineffective with respect to a President with the power of self-pardon.

But I suppose it is arguable whether my textual analysis really just collapses to the "no one is above the law" argument. Which is, to my mind, also a dispositive argument on the self-pardon issue.

[Krychek_2]

Trump's supporters would absolutely go along with making him an unaccountable king, and given the realities of the electoral college, they just might be able to force him back on the rest of us. No Republican looking at what happened to Liz Cheney would vote to impeach him. So that would leave the courts, which would probably determine it's a politically non-justiciable question.

Though I do have a practical question: Does he get Secret Service protection if he goes to prison?

[Armchair Lawyer]

If Trump is indicted (or even indicted and convicted), but nevertheless elected President, it would seem to me that the American people had spoken, and Trump would have every right to pardon himself.

The American people would know full well that under such a situation, Trump would do so, and they Democratically chose to do so anyway.

[Jason Cavanaugh]

"...Trump would have every right to pardon himself."

You have no business claiming to be *any* kind of lawyer, armchair or otherwise, if that's your understanding of the pardon power.

[Davedave]

Legally speaking, it's questionable. Morally, though, he's right: if the US somehow re-elects Trump knowing he will do something, then he has a mandate to do it.

[Tempe Jeff]

"I won." - Barry Obama

[Armchair Lawyer]

Legally speaking, the pardon power is meant as a relief valve for a justice system that has gone in error, to free someone who has been wrongly (but legally) convicted. (There are several other reasons it is used).

If the President was wrongly (but legally) convicted of a crime....a crime that under any other circumstances would be fully deserving of a pardon...what is his or her reprieve?

[NOVA Lawyer]

Make his appeal to the next President, of course. Just like anyone else. And if he's in prison, assuming that's a possibility, he can resign his Presidency so the Vice President can pardon him.

But the last thing that should happen is that the convicted felon should be the one who makes the determination of whether he was "wrongly (but legally) convicted of a crime."

No man should be a judge in his own case. And Presidents aren't kings.

This line of argument in favor of self-pardons is . . . not sound, to be polite.

[Armchair Lawyer]

That's one choice.

On the other hand, it Trump is elected as a convicted felon...the people have made their choice.

[NOVA Lawyer]

Which says nothing about whether the Constitution allows a self-pardon.

Your question was what was his recourse. I answered. You switched topics to an irrelevancy. And Trump will not get elected as a convicted felon. He barely got elected the first time by people hoping he would be different. He was different alright. And lost the second time. He peaked. His political career, other than grifting and sucking up oxygen, is over. (See also Palin, Sarah.)

[Reallynotbob]

Meh. Up to a point. For example, he still can't freely murder someone on Fifth Avenue even if half the electorate votes for him believing he can. Laws are like that.

[Armchair Lawyer]

It's my understanding of the democratic process, and the core of what it means to be a Democracy.

[Jason Cavanaugh]

The Constitution is the core of America, not your 'understanding' of anything you wrongly claim to comprehend.

[Nige]

Not sure a democratic mandate entitles him to break laws - assuming a self-pardon is illegal. Then again, other presidents have broken way more laws while in office than Trump has ever done (that we know of). The invasion of Iraq, Iran-Contra, muliple treaties with Native Americans, Nixon - not all of them even had to be pardoned to get away with it. However, deliberately and consciously electing someone so they'll break the law entirely for their own benefit - that'd be a profound break with even the appearance of morality and ethics. Or was re-electing Bush worse? Breaking laws and killing millions and torturing God knows how many in revenge for a crime not even committed by their targets? Hmm. Yeah, that was probably worse, but re-electing Trump would be a rejection of the entire US system of justice, and not to reform all the undoubtedly awful aspects of it, but in order to wall off a certain group of people from it while continuing to inflict it on everyone else.

[Davedave]

Legally, having a mandate from voters doesn't change anything. Morally, it does.

[Jason Cavanaugh]

There is no such thing as a moral mandate to take immoral actions.

[Davedave]

It wouldn't be immoral, if he's been given permission by a majority of the electorate. Still illegal, of course, but not immoral.

[Jason Cavanaugh]

Morality is not a popularity contest, and what is moral does not change based on the number of idiots who vote for you.

[Davedave]

Sometimes it is, and sometimes it does. Whether this particular thing does...

I really don't know. As much as I think it's a despicable thing to do, if someone can get the voters to approve of it, that counts for something.

[Reallynotbob]

I look forward to future VC discussions about why popular majority opinions are de facto moral ones.

[NOVA Lawyer]

Davedave,

Your posts about executing Trump suggested maybe you didn't understand morality. This thread demonstrates you have no clue.

Voters electing a President, no matter what his professed agenda (self-pardon or, say, Hitler being elected on a platform of genocide) does not render their platform moral. U.S. elections don't establish morality.

[Davedave]

It doesn't, no. I never suggested it did. Why not try reading it again, see if you can reach a 10 year old's reading comprehension level this time?

[NOVA Lawyer]

"Legally, having a mandate from voters doesn't change anything. Morally, it does."

"Legally speaking, it's questionable. Morally, though, he's right: if the US somehow re-elects Trump knowing he will do something, then he has a mandate to do it."

Yes. You did say it.

No, if the US somehow re-elects Trump knowing he will do something, that says nothing about the morality of the thing he said he would do.

Whether it's the pardon power, tax cuts, or genocide, the results of an election do not affect the morality of his platform.

Either say what you really intended to say or admit you were wrong.

Failing to do one of those is just lying.

[Sarcastr0]

Care to go into why you think self-pardoning is required by democracy?

[Krychek_2]

"The American people would know full well that under such a situation, Trump would do so, and they Democratically chose to do so anyway."

No they didn't do so democratically. If Trump wins another term, it will be because the electoral college, again, overrode democracy. As supporters of the EC like to remind us, overriding democracy is one of the core functions of the electoral college.

If you want to argue that he won under the rules that are in place, make that argument. If you want to argue that those are good rules, make *that* argument. But do not claim that the American people democratically did this to themselves. They didn't. A third Trump term will have been forced on the majority of the American people. Probably a majority of the country wants nothing more than for Trump to simply go away.

[David Nieporent]

A third Trump term will have been forced on the majority of the American people.

Third?

[Krychek_2]

Sorry, misspoke. I meant second.

[David Nieporent]

Got worried for a moment.

[Rev. Arthur L. Kirkland]

Perhaps those responsible for administering justice should address this situation by prosecuting Donald Trump (and, where warranted, his family members and other associates) for state crimes, regarding which the pardon power would be less relevant.

[bernard11]

Trump would have every right to pardon himself.

By this logic, the President is immune from federal law. He can do anything he wants - evade taxes, commit securities fraud, sell security secrets - with impunity.

It's a very stupid conclusion.

[ah....Clem]

"When the president does it, that means it is not illegal."

Seems like I heard that somewhere before...

[David Nieporent]

Right. I think a lot of people who think about "self pardon" are imagining the president pardoning himself if it looks like he's about to be caught and prosecuted for something he did in the past. But if the self pardon power exists, he can use it proactively.

He can go over to Capitol Hill and rape and murder Nancy Pelosi and then produce a pre-written pardon from his pocket, sign it, and say, "I have just pardoned myself for doing that."

Lather, rinse, repeat.

[Martinned]

What do the impeachment clauses have to do with the pardon power? Pardons are in relation to crimes, and committing a crime is neither necessary nor sufficient to get impeached.

[Brett Bellmore]

In fact, the pardon power explicitly doesn't apply to impeachment.

[Martinned]

True. Although that in itself doesn't mean that the clauses can't be used to help with each other's interpretation.

[NOVA Lawyer]

But the impeachment clause specifies that the President, after impeachment, is subject to criminal prosecution. If a President can self-pardon, that portion of the impeachment clause is rendered toothless (and in a way that isn't the same for other officials who must seek a pardon from someone else, the President).

It seems to be inconsistent to interpret the Constitution as authorizing criminal prosecution of the President post-impeachment, but assuming he can self-pardon.

Add to that, I have yet to hear anyone say why a self-pardon is a good idea. They only argument I see is that the power is "unlimited" and that means the President can pardon himself. I don't think that is logically sound, at all. All the more so when I think everyone agrees self-pardons weren't discussed because the Founders didn't even consider the possibility. Why? Because the concept is self-evidently stupid and, moreover, they expressly stated the President is subject to criminal prosecution after impeachment.

The only out I see would be that, if the President isn't impeached for the crime, then the impeachment clause doesn't conflict.

Shorter version of the above: The impeachment clause could be read not only to preserve, but also to revive, any criminal action against an impeached official, including the President. The President can pardon others, but post-impeachment, has no pardon powers at all (much less self-pardon powers). On this reading, allowing a self-pardon pre-impeachment would render nugatory the portion of the impeachment clause providing the President "shall be subject to prosecution" etc..

That's my argument.

[Martinned]

Not all bad ideas are unconstitutional.

And the part of the impeachment clause you mention, which is generally there to prevent the president raising a double jeopardy argument in a subsequent criminal trial, is only toothless if the president chooses to pardon himself. Presumably the drafters of the Constitution thought that the American people would never elect someone who might do that.

[NOVA Lawyer]

"Presumably the drafters of the Constitution thought that the American people would never elect someone who might do that."

Which implies the opposite of them planting the self-pardon power in the Constitution.

"Is only toothless if the president chooses to pardon himself". By which you mean, is only toothless in the precisely the circumstances where bite would be needed. A prison works just fine giving the prisoners the keys so long as the prisoners don't use those keys!

But bottom line, your admission that the drafters of the Constitution never thought an explicit rule against self-pardon was necessary because the concept of a President pardoning himself was unthinkable does pretty much all my work for me.

The only other point: What good would a self-pardon accomplish? (If there isn't one, it seems stupid to assume the drafters, ratifiers, or anyone else intended it be in the Constitution).

[David Nieporent]

The drafters of the Constitution did not think the American people would be electing the president in the first place.

[iowatwo]

Isn't that what elections are for?
Dems keep talking about threat to democracy and the same time they work to prevent the people from voting for who they want.

[Brett Bellmore]

What they mean by "democracy" is just "Democrats getting elected", nothing more.

[Nige]

To Repblicans, Democrats wanting to get elected is undemocratic.

[bernard11]

To Republicans, Democrats even voting is undemocratic.

[Sarcastr0]

Once again, Brett, telepathy.

I've heard many a conservative on here claim massive voter fraud or just ask for a purge of liberals from the country.

That same illegitimacy of the other side doesn't show up much around here from the liberals here.

And yet you take the opposite message.

[Mr. Bumble]

You mean like two Democrat governors of NY saying there was no place for them in that state?

[Sarcastr0]

When they start posting on the VC, your comment may be relevant. Though even then, Trump calling the media unamerican takes the cake.

[damikesc]

Trump criticizing the media and Hochul attacking VOTERS are vastly different things.

[Davedave]

"they work to prevent the people from voting for who they want."

Yes, because the law says he can't be a candidate and the country needs to be protected from people who think he's an appropriate leader.

[Reallynotbob]

The Dems appear to be interested in allowing more people to vote for whomever those people want... Is that what you meant?

[Davy C]

"According to law". And the law says you can't convict someone who's been pardoned.

The President could order all opponents killed, including the Senators who would convict him in an impeachment trial, and pardon all involved in the crimes as well as himself. This is nonsense.

But even without pardons the President could simply order his AG not to prosecute him. Or grant immunity in exchange for testimony. If we're already intimidating Congress we could repeal those pesky laws, or change them so there's an exception for the President.

[Reallynotbob]

Well shucks! That pesky Al Capone is just gonna murder all them witnesses anyway. We might as well pardon him!

[NOVA Lawyer]

As a pratical matter, your alternative hypothetical is true, but the intimidation, etc., would violate the Constitution. The President would be violating the law and he would not have the legal power to excuse himself (even if he managed to obtain sufficient practical power).

If he has the self-pardon, all the actions in my hypo are Constitutionally kosher.

The practical effect isn't much different, perhaps, but I just don't see the Constitution saying, yep, that's all cool if he can manage to get enough people to go along. The Constitution does not create a President not subject to the law.

The self-pardon quite clearly places the President above the law (in that the President can choose to place himself above any law he chooses, including murder). That's madness.

[not guilty]

Eugene Debs ran for president while incarcerated. If Trump is convicted in Fulton County, Georgia, denied bail pending appeal and somehow elected to another term as president, however, why could he not be incarcerated during his time in office?

[Don Nico]

Just paint the jailhouse white and be done with it.

[Reallynotbob]

Gold. Paint it gold.

[Armchair Lawyer]

Because of the superiority of Federal law over state law.

Your way leads to madness. Why couldn't a friendly judge in Mississippi convict Biden on some random charges and put him in jail right now?

[Davedave]

"Why couldn't a friendly judge in Mississippi convict Biden on some random charges and put him in jail right now?"

Because Biden isn't obviously guilty of any crime.

[Tempe Jeff]

He would be able to use the Insanity defense anyway.

[Armchair Lawyer]

"Because Biden isn't obviously guilty of any crime."

Why is that actually a barrier?

Assume for the sake of argument, the judge is hopelessly corrupt, and has been paid off in conjunction with a corrupt prosecutor.

What would happen if the judge just convicted Biden? And immediately ordered him to jail, without any time for an appeal? Any appeal would occur from when Biden was in a jail cell. Would Biden need to go to a Mississippi jail?

[Davedave]

The ruling would be immediately overturned, before Biden could be asked to surrender himself, and the judge sacked, and probably prosecuted and jailed. Arguably, such an act would constitute insurrection/seditious conspiracy.

There is a difference between an obviously false charge aimed at a sitting president and an obviously true one aimed at a candidate.

[Armchair Lawyer]

"The ruling would be immediately overturned,"

By who? Assume an immediate demand to surrender, directly after the ruling. A "normal" person would submit to the demand to surrender, then get released from jail shortly thereafter. EVEN IF the charge was false, they would still surrender themselves, because the ruling hadn't been overturned yet.

Should Biden not submit to the imprisonment?

[Brett Bellmore]

I think avoiding situations like this might actually have been part of the reason for DC; It put the President and Congress in a jurisdiction they controlled, and so insulated them from any hypothetical state actions.

[Davedave]

You clearly haven't understood the process. On receipt of notification of such a proceeding, let alone such an outcome, the POTUS would simply contact a real judge for an emergency order overturning the nonsense, which would be granted before the question of surrendering actually came up.

Bear in mind you're proposing a criminal act by a corrupt judge. Of course there are systems in place to prevent such things causing chaos.

[bernard11]

Wouldn't any alleged crime have to have been committed in Mississippi?

[damikesc]

"Because Biden isn't obviously guilty of any crime."

He committed a quite illegal quid pro quo involving Ukraine. Executive branch is not legally permitted to withhold funds pending a specific action. Biden did that.

[not guilty]

The Supremacy Clause states:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

What particular constitutional provision(s), federal statute(s) or provision of federal common law, or treaty would require a state to release a duly convicted and incarcerated offender from prison upon being elected as president?

[Aladdin's Carpet]

There are a great number of things more important to talk about than whether or not this asshole who committed a crime gets to walk or not. In an ideal world he shouldn't.

And we still have idiots on the right falling over themselves defending this guy. Itd be amusing if it wasn't so concerning.

Anything about the legal implications of the president of the US being able to waive a magic wand to spend $400 billion on students with no clear legislation to that effect? Or is that not something people wanna talk about? Just Trump Trump Trump Trump Trump Elon Trump ...

[Davedave]

I really don't know why people are concerned about Biden's drop-in-the-ocean student loan thing. It's utterly insignificant.

Frankly, if he doesn't have the power to spend (what is by government standards) small change, then he ought to. It's like requiring the CEO of a $100bn corporation to get board approval to spend 5 bucks out of petty cash.

[Brett Bellmore]

In 2021, federal spending was just under $7 trillion.
Biden's student loan forgiveness plan is estimated to cost about $500 billion. Not instantly, but in foregone revenue over the next couple of decades.

So you're calling 1/14th of the federal budget small change. Just so we're clear.

For context, Trump's proposed border wall, that Democrats went nuts about, was about $20 billion. 1/25th as much.

[Nige]

Relying on the compound interest on student loans for revenue is a shitty, shitty way to raise revenue. More people not straining under horrible debt is way better for the economy.

But the wall fell down, and was used to scam people. Poor people in debt were helped up. That's just better.

[Brett Bellmore]

Again with the benefit analysis. "Poor people in debt were helped up", and not one word for the people who will be paying for it, on average poorer people.

[Sarcastr0]

How will people pay for this? Uncollected debt isn't the same as an asset on the USG books.

[David Nieporent]

How will people pay for this?

Well, strictly speaking they already have. Checks were already issued from the treasury.

Uncollected debt isn't the same as an asset on the USG books.

????

[Sarcastr0]

This is the same argument we had before, except on the other side - forgiving this debt doesn't make the national debt any bigger, nor does it make anyone's taxes higher.

Just as the the student debt forgiveness doesn't act like cash, so too is it different for the government.

[bernard11]

To the extent that spending is unaffected, which it will be, the foregone revenue will in fact increase the debt.

[David Nieporent]

forgiving this debt doesn't make the national debt any bigger,

It literally does. Well, I guess it depends on how pedantic one wants to be: the act of forgiving the debt isn't what makes the debt bigger (than it otherwise would be); the failure to collect the money does. If Art History Major/Starbucks Barista X sends in his check for $428 this month, the debt is $29,999,999,999,572. If Art History Major/Starbucks Barista does not send a $428 check because Biden forgave the loan, then the debt is $30,000,000,000,000. The latter is literally larger than the former.

Whether it increases taxes is a separate issue. In the short run, no; in the long run, all spending is taxation.

[Nige]

At least they'll know they're helping people, not pissing the money away on a xenophobic boondoggle and scam operation.

[damikesc]

It is vital we tax plumbers to pay Harvard law grads.

[Nige]

Offhand there are hundreds worse things plumbers pay taxes for before you get to helping some other poor schlub struggling under a mountain of debt.

[damikesc]

Nah. Paying off some rich schlub who agreed to pay a debt and then chose to renege is pretty damned bad.

[Nige]

If the schlub is rich, they're not in debt for student loans.

[damikesc]

"If the schlub is rich, they're not in debt for student loans."

AOC is not poor by any means. She has the debt.

[bernard11]

Again with the benefit analysis. "Poor people in debt were helped up", and not one word for the people who will be paying for it, on average poorer people.

You apply this standard rather selectively. I don't recall you criticizing Trump's tax cuts on these grounds.

And it is not at all clear that those paying for it will be "on average poorer people." Don't conservatives routinely complain that lower-income individuals don't pay enough taxes?

Another selective argument.

[damikesc]

Taking less of somebody's money is not forcing anybody to pay anything.

[Davedave]

You're using 'over several decades' for one measure but not the other? Sounds honest...

If we do both the way you want to do one, it's 1/420th of the budget. Elon Musk would approve.

[Brett Bellmore]

You're still comparing 1/420th of the budget to 1/20,000,000,000th of the budget. A few zeros difference there.

[Davedave]

I'm not, you're just making up random numbers now that your attempted dishonesty has been pointed out.

[Brett Bellmore]

"It's like requiring the CEO of a $100bn corporation to get board approval to spend 5 bucks out of petty cash."

$5/$100B = 1/20,000,000,000

Might be made up numbers, but I didn't make any of them up.

[Davedave]

Whut? You're just stringing together random numbers now. Where are you getting 100 billion from? Do you think a company valued at that amount has that much cash around?

You're either very, very, very stupid, or merely quite stupid and a very poor liar.

[Don Nico]

You, dave, are either very, very, very stupid, or merely quite stupid and a very poor liar.

[Davedave]

Nick, are you in elementary school?

[bernard11]

Never admit you made a mistake, Brett.

[NOVA Lawyer]

How telling is this?

Brett, for the love of god, if there was ever a time to say you made a mistake, this is it. Low stakes. "Yep, you're right, should have compared cumulative spending to the cumulative budget." And you can avoid what you have done, which is to shout that you will never, ever, admit error, no matter how trivial and obvious the error is.

Basically, it is far more embarrassing for you to keep digging that particular hole than just to say, oops, I goofed.

[damikesc]

Given that we have no clue what the cumulative cost will be (certainly not less than $500B but quite likely more), he made no mistake.

[NOVA Lawyer]

Given that we have no clue what the cumulative cost will be (certainly not less than $500B but quite likely more), he made no mistake.

So you're going to double down on dishonesty.

He made two assertions, $500 billion estimated cost of student loan forgiveness (over "the next couple of decades") and he compared that, in fractional terms, to 2021 federal spending of "just under $7 trillion" dollars.

It was pointed out that this was dishonest (or a mistake), because he was comparing one year of spending to two decades worth of the student loan forgiveness program.

His estimates. His mistake.

Not knowing what the actual cost will be doesn't change the fact that he compared one year to 20 years, which is misleading, at minimum. He never acknowledged that, which suggests dishonesty and a lack of regard for his own reputation for candor.

Then you swoop in all for dishonesty. Nice.

[bernard11]

In 2021, federal spending was just under $7 trillion.
Biden's student loan forgiveness plan is estimated to cost about $500 billion. Not instantly, but in foregone revenue over the next couple of decades.

So you're calling 1/14th of the federal budget small change. Just so we're clear.

Not at all clear, Mr. Numerate.

You are comparing a cost over "a couple of decades" - twenty years - to one year's budget. Innumerate, I'd say.

[Rev. Arthur L. Kirkland]

" In 2021, federal spending was just under $7 trillion.
Biden's student loan forgiveness plan is estimated to cost about $500 billion. Not instantly, but in foregone revenue over the next couple of decades. So you're calling 1/14th of the federal budget small change. "

The federal budget over the next couple of decades likely will exceed $140 trillion. An estimated expenditure of $500 billion throughout that period is nowhere near one-seventh. Even an English major can handle that math.

Also math: $500 billion over 20 years would be less than $85 per year ($1.50 per week) per American.

[Joe_dallas]

Aladdin's Carpet
September.1.2022 at 1:46 am
Flag Comment Mute User
"There are a great number of things more important to talk about than whether or not this asshole who committed a crime gets to walk or not. In an ideal world he shouldn't.

And we still have idiots on the right falling over themselves defending this guy. Itd be amusing if it wasn't so concerning."

At the same time, the democrats are defending the corruption of both the clinton family and the biden family

[Nige]

Well, the right are trying to claim some sort of equivalent corruption of the Clinton and Biden families, but one was investigated three times, and the other was an embarrasingly obvious attempt at mudslinging.

[Joe_dallas]

Nige - you proved my point - all three families are deeply corrupt, yet you defend the corruption of the clinton family and the biden family.

And no, the clinton corruption was not investigated, at least not at the level that could be called a legitimate investigation.

[Nige]

Oh God, if you say so. Curse them slippery Clintons!

[Reallynotbob]

Gee Joe, if only Republicans had been in control of Congress and the Presidency for *even *one *moment after the Clinton conduct you say was never investigated. When, oh, when could they have conducted a "legitimate" investigation of those Clintons?

Hint: 2003-2007 and 2017-2019

[Joe_dallas]

Okay - the investigation was probably more comprehensive than the Penn investigation of Mann, but not much more.

[Sarcastr0]

So the GOP was in on it, protecting Bill Clinton? Because they did a great job of looking like they hated him, right down to impeaching him!

[Joe_dallas]

your comment makes zero sense
Especially in light of the known facts

[Brett Bellmore]

Yes, actually. Perhaps you don't recall, but the House held a rather contentious vote, and voted to extensively investigate all possible charges against Clinton.

Then Bill Livingston's dirty laundry was released, he quit, was replaced by a (not yet publicly exposed) pedophile, and suddenly the House impeachment managers threw out 90% of the possible charges, and decided to proceed straight to trial on the remaining charges without any investigation. And the Senate leadership decided an actual presentation of the evidence was beneath their dignity, and insisted on going straight to a vote.

Kinda inexplicable, except as the result of successful blackmail.

[David Nieporent]

What I love about Brett is the elaborate conspiracy theories based on completely made up facts.

In actual fact: the impeachment of Clinton had already occurred before Bob (not Bill) Livingston announced he was going to resign. He was not "replaced by" Hastert, because he never held the position. No 90% of charges were thrown out, and the investigation had already been completed before all of this. The Senate did not skip the presentation of evidence and did not go straight to a vote.

So, the "explanation" is literally that you made up an insane conspiracy theory in your head and then fabricated the evidence that you needed to support it, and — as always — decided that only a conspiracy could explain it.

[Aladdin's Carpet]

In case you haven't noticed, the Clinton family is not in power and no where near power at the moment.

Trump isn't either, but it would be the same, this wouldn't matter, if he didn't keep repeatedly lying about still being the president.

Biden ... Hunter Biden is an idiot corrupt asshole. What does that have to do with anything?

[bernard11]

I'm not defending "the corruption of both the clinton family and the biden family."

Show us some evidence of crimes, by the "family."

Hunter Biden being something of a sleaze who cashes in on his name doesn't make him a criminal. And it certainly doesn't make Joe Biden a criminal.

[Sarcastr0]

Weird you didn't mention Obama.

Similar to the weak-ass attempts on him showing how clean he was, the attacks on Hunter are how you know the GOP has nothing on Biden.

The fact that you, as usual, declare something true based on your certainty and maybe a blog somewhere you like, doesn't change the obvious - Trump operates on a level of corruption all his own.

[damikesc]

That Hunter and Joe shared bank accounts and phone numbers...there is literally no difference in the two.

Except Joe is more of a pedo.

[Bored Lawyer]

"There are a great number of things more important to talk about than whether or not this asshole who committed a crime gets to walk or not."

The whole Trump affair is sure a great distraction from all of the failures of the Biden Administration. And, it pumps Trump up with the Republican base, at the expense of more normal candidates, like De Santis.

It would be a trully Machiavellian move to go after Trump for those purposes. It just seems too smart for the current White House crew.

[Bill Poser]

How quickly could Trump be convicted? Suppose that DOJ indicts him tomorrow and is prepared to go to trial right away. What is the shortest conceivable timeline?

[santamonica811]

A defendant is constitutionally entitled to a speedy trial. It is *very* common for defendants to waive this right (hey, witnesses may move, or die, or forget what they saw/heard). In theory, a judge could say, "Both sides say they are ready to proceed to trial. It's Friday, Sept 2. We start jury selection on Monday the 12th. Have all your pre-trial motions to me, and opposing counsel, by next Wed, we'll decide them on Friday the 9th."

Would that actually happen? Of course not. But there's no legal bar to moving that quickly. (Assuming both sides want . . . more realistic would be one side or the other wanting X number of weeks to prepare. A 3-6 months-in-the-future trial date would be more ordinary, in cases where a defendant waives time but still wants a relatively quick trial.

[Noscitur a sociis]

. In theory, a judge could say, "Both sides say they are ready to proceed to trial. It's Friday, Sept 2. We start jury selection on Monday the 12th. Have all your pre-trial motions to me, and opposing counsel, by next Wed, we'll decide them on Friday the 9th."

That's not quite correct: the Speedy Trial Act, 18 U.S.C. § 3161(c)(2), requires that trials be set at least 30 days after arraignment unless the defendant consents.

[Bruce Hayden]

Trump won’t be convicted. Trial would almost certainly be in Florida, probably, more likely than not, by one of the judges he nominated (or at least by a Republican nominee). Very possibly the judge hearing the motion for a special master. With appeals going to a Republican dominated Circuit. The actions claimed to be criminal occurred in FL. The raid happened in FL. The defendant officially resided in FL the entire time. That means that the jury pool won’t statistically be 95% Clinton and Biden voters, as it would in DC. Do you seriously expect to get a unanimous guilty verdict by FL jurors, in a state won twice by Trump?

Moreover, with a more sympathetic federal judiciary in FL, the jury instructions on intent would likely be for specific intent, instead of the more general intent being sold in that LawFare article. How are they going to prove that Trump, the delegator, personally knew that the documents marked classified were actually still classified, beyond a reasonable doubt, since he had been the President at the time with plenary declassification authority? How do they prove, again beyond a reasonable doubt, that the documents that he designated as personal, weren’t, but instead, were Presidential records, esp in view of the discretion allowed in this area to his Presidential predecessors?

[Sarcastr0]

The country is not as full of partisan tools as you take it for.

[WuzYoungOnceToo]

The country is not as full of partisan tools as you take it for.

Your four square feet of it certainly is.

[MollyGodiva]

The documents were stolen in DC. Thus they could file charges in DC.

[Michael P]

Stolen in DC? By the National Archives staff?

[Don Nico]

Molly, the Clown is not being charged with theft.
Failure to comply with a subpoena? FL
Obstruction? FL
Something else? Anywhere the DOJ can.

[Joe_dallas]

as noted below
which is worse

1) having possession of classified documents
2) an unsecured diplomatic messaging system

Does anyone recall the purple codes or magic code

[not guilty]

Under 18 U.S.C. § 3237(a), an offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

Trump's wrongful removal of the subject documents occurred in the District of Columbia. Trump's retention and concealment occurred in Florida. The DOJ would no doubt prosecute in D.C.

[Brett Bellmore]

The catch is, if the documents left DC while Trump was still President, there would be no crime in DC, even if retaining them afterwards was illegal. But certainly, the DOJ would move heaven and Earth to make sure the trial was in DC.

[Reallynotbob]

DOJ would probably argue that the obstruction occurred in DC. Letters were sent there, etc. etc.

Also, it's not uncommon to prosecute in the place where the victim of a theft by retention occurred. Here's the California version of a theft jurisdiction statute:
https://casetext.com/statute/california-codes/california-penal-code/part-2-of-criminal-procedure/title-3-additional-provisions-regarding-criminal-procedure/chapter-1-of-the-local-jurisdiction-of-public-offenses/section-786-jurisdiction-for-burglary-carjacking-robbery-theft-embezzlement-or-unauthorized-use-retention-or-transfer-of-personal-identifying-information

[Brett Bellmore]

Nothing in that statute is a good analogy for what's going on here, which is somebody moving property they had rightful possession of at the time, and then a claim later being made that rightful possession had lapsed.

[Davedave]

The shortest conceivable timeline sees him going to the chair within a few weeks, having confessed in full and waived any right to appeals etc.

Obviously that ain't gonna happen. He's going to string it out as long as possible, in the hope he can stay out of jail/the chair until he dies of natural causes.

I would doubt it's actually practical to get a conviction done before Trump pops his clogs, given how much delaying he'll be able to do, and his limited life expectancy at this stage.

The only way to speed things up in practice will be to refuse bail, and I'm not sure I'd agree with doing so just to stop a defendant using delaying tactics, even if the defendant is Trump.

[not guilty]

If Donald Trump dies outside of prison, he will have effectively gotten away with numerous heinous crimes.

[Davedave]

Ditto if he dies in prison, though. That's the thing about committing crimes that lead to whole of life or death sentences: effectively all the crimes after that are freebies, because there's no sentence uplift possible.

[Bored Lawyer]

"going to the chair"

Do you seriously think Trump committed a capital crime? Or is that a metaphor for something else?

[Davedave]

We know he did. If he actually confesses to everything he's done, of course he'd face the chair. It might be hard proving things if he denies them, but he's facing treason charges, so obviously the death penalty is a possibility.

Presumably he'll eventually bargain a guilty plea for a life sentence, rather than try a ludicrous defense and face the chair.

[Bored Lawyer]

"he's facing treason charges"

Try psychotherapy. It works wonders.

[ah....Clem]

Calm down, Beavis. Nobody is going to "the chair". You're making our side look silly.

The most likely scenario *if* he'd indicted is a protracted, drawn out, lengthy, expensive series of appeals and delaying tactics. Maybe a plea deal after a while, maybe not. The idea of a "speedy" trial is fantasy.

[Bored Lawyer]

"You're making our side look silly."

While you are to be commended for your rationality, this comment itself is problematic. I think he is a nutjob for thinking Trump committed treason and will be executed for it. I don't think that of you. I don't judge "sides" but arguments.

And here is a thought. It is entirely possible that Trump is a crook and deserves a jail sentence AND that the DOJ has allowed itself to be politically compromised. In fact, I think both are very likely.

[Brett Bellmore]

I would, in fact, not be at all shocked if Trump has committed crimes while President. I'd be somewhat shocked if they were crimes previous administrations hadn't gotten away with...

[Reallynotbob]

Ford pardoned Nixon. Does that count?

[bernard11]

I think it is possible, though unlikely, that he revealed national security secrets to Putin.

I think it is a bit more likely that he revealed them sort of randomly, to show off.

[damikesc]

Kind of hard to negotiate on anything serious without "Revealing national secrets".

US nuclear secrets were revealed in negotiating nuclear treaties.

[Bill Poser]

Much as I loathe Trump, I doubt he will be convicted of a capital crime. The offenses currently under investigation by the DOJ do not include treason or any other capital crime. Trump probably did commit sedition (in instigating the events of January 6th, but that is not a capital crime. In many countries what he did there would constitute treason, but the US Constitution defines treason very narrowly. Attempting to overthrow the government of the United States does not constitute treason unless one is acting on behalf of a foreign power, which, in spite of his dubious connections to Russia, he probably was not.

[damikesc]

"in instigating the events of January 6th"

There is, literally, zero evidence of this whatsoever.

"Attempting to overthrow the government of the United States"

Which he also did not do.

"one is acting on behalf of a foreign power, which, in spite of his dubious connections to Russia, he probably was not."

Trump did nothing on Putin's behalf.

Biden, however, has given Ukraine massive returns on their Hunter investment...

[Bruce Hayden]

“As former Mueller investigation prosecutor Andrew Weissmann put it on Twitter: “DOJ BIG PICTURE: you don’t make a filing this strong, bold, and factually accusatory if you don’t have every intention to indict.””

Keep in mind here that this is LawFare. They are highly partisan, and the Whitte/Weissman deliberate and egregious misinterpretation of the Obstruction of Justice statute that was what the Mueller prosecutors used to keep their investigation going for over a year after they had definitely determined that they had no evidence of a conspiracy between Trump and the Russian government. That is what LawFare does - it misuses the legal system to prosecute political enemies - led since 2016 by Trump.

Whitte and his buddies here skip blithely over what they consider a triviality that Trump believed that the relevant documents had been declassified. After all, he had plenary declassification authority at the time he designated which documents to remove to MAL. Moreover, Trump, in his last full day in office, formally signed a Presidential order declassifying all the RussiaGate documents, including ones critical of the DOJ’s National Security Division (NSD), FBI’s Counterintelligence Division (CD), and Weissmann’s Mueller investigation. Not surprisingly, NSD, CD, and their alums, appear to have significant parts in the MAL raid.

And that is why the partisan hacks at LawFare skip so quickly over whether the documents are really classified. Sure - there were documents found at MAL that were marked as classified (or higher). But were they still classified? Likely not. But maybe more importantly, did Trump and his people believe that they were still classified? While he was still in the office, he was the primary declassifier in the government. All of the bureaucrats who were supposed to remove classified markings from documents worked for him, and at least for the RussiaGate documents, were specifically ordered to complete the declassification process, and apparently did not (according to FOIA requests). And all of the documents he selected for removal (as far as we know), were selected while he was still President, and still had plenary declassification authority.

The LawFare argument breaks down, the same way that the Whitte/Weissman argument did - on intent (that one also failed on materiality grounds too). Here, they equate documents marked classified with classified documents. They aren’t the same, in the case of the (former) primary declassifier. Then they try to show carelessness in their handling, and impute intent from that, through their asserted mishandling of those documents. That argument might work for anyone else in the government. But it likely fails for the former primary declassifier, esp when he believes that the documents, despite classified markings, had been declassified. Moreover, that belief is probably realistic, given past court present, and certainly isn’t unreasonable. Which very likely means that proof of the intent element of the alleged crimes, beyond a reasonable doubt, is probably very unlikely

[Jason Cavanaugh]

Remarkably, despite your lies, not a single one of Trump's briefs in the case so far have claimed that the documents he stole were declassified.

THAT is why the declassification argument is bullshit, and THAT is why it is ignored by people with demonstrable critical thinking skills.

You're a liar, Bruce.

[Happy Miser]

Unfortunately, a long-winded liar. It amazes me how much bullshit is generated in the comment section.

[Nige]

The criminal statutes don't require the documents to be declassifed.

He has made absolutely no effort to prove he declassified anything.

[Bored Lawyer]

Right, because we had a full blown trial and everybody saw the lack of proof.

I am no fan of Trump, and wish he would go away into oblivion. I am less a fan of the trashing of legal norms in the effort to get Trump.

[Nige]

We saw the filing his legal team made, we've seen his claims on social media. Maybe more will come out in a trial. I'm not aware of a single legal norm that's been trashed, other than not moving speedily to arrest someone in posession of top secret sensitive government documents.

[Davedave]

Trump's pretend lawyers have violated many legal norms - the common sense ones like not telling obvious porkies under oath.

[Don Nico]

Clearly as pretend as you are

[not guilty]

Which statute cited in Attachment B to the Mar-a-lago search warrant requires that the documents or records in question be classified? (Hint: none of them does.)

That is not to say that ignoring classification markings is without evidentiary significance. The presence and disregard of such markings is strong evidence of scienter. But classification is not an element of any offense the DOJ is relying upon.

[Nige]

If they dont indict, two conclusions will be drawn:

1. The law does not apply to people like Trump - despite the preponderance of evidence of wrongdoing, being a rich and a powerful political figure buys you immunity. The entire system of justice is thrown into question.

2. The entire thing has been fabricated so shoddily it would never even stand up in a rigged court, hence no follow-through. The entire system of justice is thrown into question.

Either way, US national security is reduced to even more of a laughing stock.

Given all that, I don't see what the dilemma about indicting him actually is. After all this, from the point of view of justice and fairness, TRUMP DESERVES HIS DAY IN COURT. If he is innocent, he deserves to clear his name. If not, well, the other. Trump's presidential ambitions and any view he may have about them as an avenue of escape may make difficutlies and complications but are ultimately irrelevant.

[Joe_dallas]

ige
September.1.2022 at 5:26 am
Flag Comment Mute User
If they dont indict, two conclusions will be drawn:

1. The law does not apply to people like Trump - despite the preponderance of evidence of wrongdoing, being a rich and a powerful political figure buys you immunity. The entire system of justice is thrown into question.

Either way, US national security is reduced to even more of a laughing stock.

Correct - US national security was reduced to a laughing stock with HRC, with the unsecured messaging system - unsecured server. Good thing you remembered the lessons of Purple and magic. Unfortunately, comey 's team gave her a pass.

[Nige]

That whole election was a gaping national security joke - see the Mueller Report.

[Joe_dallas]

Nige
September.1.2022 at 10:12 am
Flag Comment Mute User
That whole election was a gaping national security joke - see the Mueller Report.

Nige - you might actually read the Mueller report -

You can judge the credibility of the Mueller report by the frequency of the references to the Steele Doiser. You can judge the credibility and accuracy of Muellers team by their knowledge of the Steele Doisser

[Nige]

What's the Steele Dossier got to do with Russian election interference?

[Joe_dallas]

Nige
September.1.2022 at 12:52 pm
Flag Comment Mute User
"What's the Steele Dossier got to do with Russian election interference?"

You comment indicates that you have near zero knowledge of the facts associated with the Russian election interference along with grossly misinformed on the entire subject matter.

Your comment also indicates how grossly misinformed you are

[Nige]

Mueller Report found that there had been Russian interference in the election, that the Trump campaign knew about it and welcomed it, and had lots of meetings with Russians - nothing whatsoever to do with the Steele Dossier, and clearly a massive national security issue.

[Joe_dallas]

https://www.npr.org/2019/03/24/706318191/trump-white-house-hasnt-seen-or-been-briefed-on-mueller-investigation-report

The special counsel found that Russia did interfere with the election, but “did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple efforts from Russian-affiliated individuals to assist the Trump campaign.”

NIge - time for you to get up to speed on the facts -

Again Mueller ignorance of the significance/existence of the Steele Dossier shows a very substandard investigation. Your feigned ignorance of its significance shows extremely blind partainship

[Nige]

It found that they knew about it, that they were approving of it, and that they met with Russians. It fell short of saying they colluded or conspired, but it also said the administration obstructed the investigation. Those are the facts. None of it has anything to do with the Steele Dossier.

[Joe_dallas]

In summary -

Nige you have a delusional understanding of the facts - and grossly misinformed.

[Nige]

It's in the Mueller Report.

[Joe_dallas]

Nige - sounds like you didnt actually read the Mueller report - or at least did not understand it.

"Though You can judge the credibility of the Mueller report by the frequency of the references to the Steele Doiser. You can judge the credibility and accuracy of Muellers team by their knowledge of the Steele Dossier. fyi - it was common knowledge within the intellegence community that the Steele Dossier was paid for via funds from the clinton campaign.

[damikesc]

"That whole election was a gaping national security joke - see the Mueller Report."

Somebody STILL buys into Russiagate?

Seriously?

[Joe_dallas]

nige apparently still believes in "the russiagate"

[Nige]

Only repeating what was in the Mueller Report.

[Joe_dallas]

Nige -
The Mueller report mentions the Steele Dossier 14 times. Not once does the Mueller team acknowledge that the Steele dossier was fabricated and paid for via connections with the HRC campaign.

Need to get up to speed on the facts - In this case well known by the general public by the late 2017. Certainly well know by the FBI by Nov 2016 and well known by most everyone on the Mueller team before the Mueller team was even formed.

[Nige]

It was't 'fabricated' it was oppo research initiated by Republicans, and none of the details I mentioned had anything to do with it.

[Joe_dallas]

Nige
September.2.2022 at 10:54 am
Flag Comment Mute User
"It was't 'fabricated' it was oppo research initiated by Republicans, and none of the details I mentioned had anything to do with it."

Nige - no wonder your commments are incomprehensible. You have a seriously delusional understanding of reality and basic facts

[Brett Bellmore]

He's latched onto some of the more implausible talking points the DNC put out, and simply won't let go of them.

[David Nieporent]

The Mueller report mentions the Steele Dossier 14 times. Not once does the Mueller team acknowledge that the Steele dossier was fabricated and paid for via connections with the HRC campaign.

Setting aside your made up fact ("14 times"), you are being dishonest. You are pretending that Mueller used or relied upon the dossier, when in fact the "mentions" were either to describe context or to point out inaccuracies in the dossier.

[Don Nico]

"Either way, US national security is reduced to even more of a laughing stock. "
That claim from either #1 or #2 does not follow logically.
In the end DOJ will decide what to do just like any DA, "can we win in court/"

[Nige]

It's not supposed to follow, US national security is now a laughing stock, end of story. But what's more of a laughing stock, the presence of all those documents in Trump's resort and Trump being indicted for it, making it clear the country takes national security some way seriously, or not indicting him, making it clear the country does not actually give a shit about national security?

[Don Nico]

"US national security is now a laughing stock, end of story"
You really show that you have no empirical knowledge about the topic.
Trump's behavior is a matter of his wrong doing, period

[Joe_dallas]

Don Nico
September.1.2022 at 11:18 pm
Flag Comment Mute User
"In the end DOJ will decide what to do just like any DA, "can we win in court/"

Don - the thread has gotten long, so not sure where your response was aimed.
With that caveat - that is one of the reasons Hillary would never be indicted. There is no way to ever get a conviction, no matter how guilty. Sussman trial is a good example.

Regarding Trump, the publicly available info indicates he also is likely guilty of possession of classified docs and obstruction, though I have not formed an opinion due to the fluidness of the info and the appearance of a political motivated investigation.

[Don Nico]

Joe,
I agree with you about Hilary. As for Mr. Trump, he sure has stacked the deck against himself, just as you say.

[Brett Bellmore]

Clearly, If Garland and/or Biden want Trump indicted, he will be indicted. Three felonies a day, he's a ham sandwich. It all comes down to whether they want it, and that's a fundamentally political decision, not legal.

I think he will be indicted. Too much build up so far to skip the climax. They've established expectations among the faithful, can't violate them just before an election.

[Rev. Arthur L. Kirkland]

" Clearly, If Garland and/or Biden want Trump indicted, he will be indicted. Three felonies a day, he's a ham sandwich. "

Your legal insights are as ignorant, wrong, and partisan as you are, Brett Bellmore. Which suggests you should submit an application to be part of Trump's legal team.

[Nige]

'And the prosecution of Trump could galvanize his supporters, leading to his re-election.'

The electorate rallied to throw the twice-impeached Trump out of office, they could very well rally again to keep the twice-impeached-and-indicted/convicted-for-espionage-and-obstruction Trump from taking it back again.

[Brett Bellmore]

You know, Trump certainly could have "locked her up", he was persuaded to refrain from violating the norm about not going after prior administrations.

That norm is now dead. It's going to be fun the next time a Republican is in the White House.

[Nige]

He wasn't 'persuaded,' there was nobody working for him crooked enough to make it happen because nothing she'd done amounted to a crime, as multiple investigations showed. And, yes, people better understand that Trump being investigated for crimes now will be seen by Republicans as license to go full fascist, despite them making such a righteous political clownshow of Clinton being investigated in 2016.

[Brett Bellmore]

His underlings were still invested in the norm, that's all that was going on. The next Republican administration won't have that issue, because everybody will know the norm is already dead.

[Sarcastr0]

His underlings were still invested in the norm, that's all that was going on.

The norm of due process??!!

The next Republican administration won't have that issue, because everybody will know the norm is already dead.
That makes them the villains.

[Nige]

Amazing that he didn't notice underlings weren't carrying out his orders and do something about it.

[damikesc]

Gen. Milley ADMITTED to performing a coup.

[Nige]

No he didnt.

[Jason Cavanaugh]

So you're only interested in political retribution, and don't care at all about justice.

I suppose that's to be expected from someone who is in favor of hanging judges from the nearest lamppost.

I hope that someday, you might surprise the rest of us by actually recognizing that facts don't care about political affiliation.

[Brett Bellmore]

No, I care about justice, but justice can't be just for one side. We can't have a tacit rule that laws get enforced against Republicans, but not against Democrats.

We've long had a corrupt bargain going on, it first became evident with Nixon, that each administration holds the prior harmless for any crimes, and expects the next administration to hold it harmless. Yes, even to some extent after leaving office: Look at the pat on the head Sandy Berger got for stealing and destroying some documents from the National Archives that might have embarrassed Clinton. He could have gone to prison for years for that, you or I would have.

If the corrupt bargain is ending, it's ending for BOTH parties, not just one.

And, realistically, this hypothetical indictment we're discussing wouldn't be about justice. It would just be the latest chapter in years of lawfare against Trump, ever since he came out as a Republican and had the bad taste to actually win.

[Nige]

Sandy Berger got a light punishment for stealing documents. Bush's pack of war criminals got off scott free for millions dead and billiosn wasted and some unknown number detained and tortured. Seems like an unequally corrupt bargain, and ending it is likely to punish the administrations that do the most crimes.

This is for crimes committed while Trump was out of office. 'To some extent' ain't cutting it.

[Joe_dallas]

millions dead is factually incorrect - grossly incorrect

[Nige]

Yes, I should have said millions of casualties.

[Joe_dallas]

Nige
September.1.2022 at 9:34 am
Flag Comment Mute User
Yes, I should have said millions of casualties.

Thats not true either -

[Nige]

Well over a million dead, you think the numbers of people wounded, scarred, mutilated and affected by toxins isn't higher? Throw in the traumatised and those suffering PTSD, while you're at it. It's monstrous.

[Don Nico]

Nige,
You can easily make your charge against Dr Fauci for pay for work, forbidden to be done in the US, in a CHinese lab with substantial bio-weapons work.

[Nige]

??

[bernard11]

Right, Brett.

In your mind it is simply impossible that Trump has committed far worse offenses than Hillary, on may fronts, and deserves to be indicted and convicted. It just doesn't enter your mind. Like Covid, you have established a natural immunity to the very idea.

[DaveM]

There's a missing middle position: maintain the threat of an indictment. Maintain it enough so Trump is guaranteed the nomination, then proceed with an indictment. Chaos ensues on the Republican side. Team Blue wins again. Democracy is saved!

[Tempe Jeff]

And, the Republic dies in gunfire. You forgot that little detail.

[Davedave]

We know the Trump-traitors hate America and want to end the Union, but apparently you haven't got the memo about not admitting it yet because it's a criminal offence.

[JohnTheRevelator]

Interesting, but after six years of "they really got him this time!" I will believe an indictment when I see one. Bottom line.

It seems quaint to recall when Reagan was in office and the left called him a fascist who wanted to end American democracy. Back then, though, the monomaniacal focus of the DOJ and FBI on "getting" a former president would have been shocking and hotly debated in mainstream media. Now everyone goes with the party line and dissent is limited to "rightwing media" where the mainstreams can safely dismiss it. That, not anything Trump may or may not have done, is what we should all consider the most concerning development of the past 15 years. A political establishment that thinks it can do whatever it wants is on a short path over the cliff.

[Nige]

Hang on, how is Reagan and his gang getting away with their crimes not indicative of a political establishment that thinks it can do whatever it wants, and Trump being investigated for serious crimes committed while out of office not indicative of actual accountability and rule of law?

[dwb68]

The spinny wheel spins. You can bet when the republicans are back in office they are going to get back at the democrats and indict some high-profile democrats.

The administrative state overclassifys everything, it's hard to care whether they are on a server or in a safe. Although tbf, at least Hillarys team had the good sense to wipe the server.

[Michael P]

Wiping a server would be "obstructive behavior" if a Republican did it.

[gVOR08]

The W. Bush administration was using a Republican National Committee server for official business and wiped millions of emails. This was discovered in 2007 when Congress investigated the apparently politically motivated firing of several U. S. Attorneys. Eventually, in 2009, 22 MILLION missing emails were found on back-up tapes, For which see https://en.wikipedia.org/wiki/Bush_White_House_email_controversy?wprov=sfti1. Do you remember the big stink, hearings, and attempted prosecutions for this between 2007 and 2009? Neither do I.

[Archibald Tuttle]

Mayor Curly of Boston was re-elected while in jail for stealing city money.

The press and Trump's opponents seem oblivious to Trump's rope-a-dope strategy. If Trump's name is on the front page every day until the 2024 election, nobody will be able to remember the name of any other candidate. If he gets sent to jail just before the election, that would pretty much guarantee his re-election.

If you are in the media and really oppose Trump, then conspire to never report any news including his name; no matter what he says or does.

[Joe_dallas]

Which is worse ?

1) Having possession of documents that are classified ( though possibly declassified)
2) Unsecured messaging system (emails, server etc)

Think back to the purple and magic codes!

[Ridgeway]

The difference is that Hillary gave back or destroyed all the materials she was not supposed to have.

Trump did not. If he had, this would all have gone away a couple of months ago.

His other viable option would have been to say , " I am retaining the following materials fox X, Y and Z reasons." In that case there would have been a civil (as opposed to criminal) fight about whether Trump was correct.

But he didn't do that either. Instead he (through counsel) brazenly lied to the FBI and stated that a diligent search had been conducted and all the documents turned over.

If we have learned anything from Scooter Libby, Martha Stewart and a zillion other examples, it is that you cannot lie to the FBI, and you especially can't play them for saps. They get really mad about that, and when they get mad, they get indictments and convictions, because those charges are really easy to prove.

[Davedave]

"His other viable option would have been to say , " I am retaining the following materials fox X, Y and Z reasons." In that case there would have been a civil (as opposed to criminal) fight about whether Trump was correct."

There are still potential criminal charges there, and that route involves admitting knowledge, intent, etc. - all the things that are normally v hard to prove. If his basis turned out to be false, he'd then have admitted the facts and have no justification for them, so would be found guilty.

[Ridgeway]

There was no dispute that Trump had some classified docs in Maralago. His lawyers turned them over and said that was all of them. If, instead, they said that those were all of the non-privileged responsive documents, but that they were retaining the privileged ones, the process would have played out in civil court. He would never have been charged criminally, unless new and very bad facts came out.

[Davedave]

It depends on whether the arguments put forward are reasonable or not. If they're reasonable but eventually ruled wrong, then there's nothing criminal. If they're entirely spurious and no reasonable person could think they were correct, then criminal charges would result.

Consider the difference between breaking into someone's house because you thought it was on fire - even if it turns out to have been a smoke machine - and breaking into their house because you think some Freemen-on-the-Land nonsense means it's your property. The former is a reasonable mistake, albeit one that might give rise to a civil claim. The latter is an unreasonable excuse and so a crime.

[bernard11]

On what basis do you think some were privileged?

[Ridgeway]

There are two arguments -- Attorney Client Privilege and Executive Privilege.

I genuinely do not know how ACP works in the context of former presidents and legal advice given while in office which may affect that former president personally.

On EP, I know many here think that a former President has zero ability to exercise EP and that it inheres solely in the Office of the Presidency. I do not see the US v Nixon as being quite that clear, and it would be helpful to get some further explication from the courts on the matter. If you think about it, the alleged reason for EP -- to allow the President to get unvarnished opinions from his advisors without their having to fear subsequent disclosure, goes out the window if the next president has the right to disclose those opinions.

So neither of those privilege arguments seems frivolous on its face.

That does not necessarily mean that the former President gets to keep classified docs in his closet. There is probably some way to transfer those records to the National Archives and keep them under seal for X years.

[David Nieporent]

So neither of those privilege arguments seems frivolous on its face.

I think the claim that a former president — a non-existent position, constitutionally speaking — can keep documents about the government's operations from the actual POTUS is frivolous on its face, on its ass, and everywhere else.

[Ridgeway]

We can argue about whether there should be any EP at all, but it seems odd to me that a President can withhold documents from his political opponents in Congress while he is in office, but the second he leaves office, those protections are gone (unless of course the next President is of the same party, in which case, no soup for Congress).

[David Nieporent]

Again: the protections exist. (I mean, actually there's a question about that; "executive privilege" is not found in the constitution. But assume it does.) The question is who can assert them. They belong to the office of the president. Not to a guy temporarily holding the job.

There's nothing even the least bit unusual about this, as we've discussed with respect to A/C privilege and other institutional beneficiaries of it. The former CEO has no say in whether a company asserts A/C privilege. Only the current CEO does.

[Ridgeway]

What about situations where an attorney's advice is given both to the Company and to the Company's officers personally -- situations like advice on criminal statutes where there are both corporate and individual penalties. After a nasty takeover, can the new CEO waive a/c privilege not only for the Company but as against the individual former officers as well? That is a question I have never really gotten a good answer to.

Regarding Executive Privilege, the whole justification for it is to allow the President's advisers to be candid with him, knowing that their advice will not be publicized. It that advice can indeed be publicized once a new administration comes in, that justification disappears. You may well be right, as a legal matter, that it is what it is, but I read US v Nixon differently. It seemed to contemplate situations where the ex-president retained the right to invoke the privilege, and not just to request that the current president do so. Saying that "ex-president" is not a constitutional "thing" is a bit of a red herring, since as you note above, the Constitution doesn't mention EP either.

[David Nieporent]

Of course a new CEO can't waive personal A/C privilege of the officers, though an attorney shouldn't be personally representing an officer and the company in the first place.

You may well be right, as a legal matter, that it is what it is, but I read US v Nixon differently. It seemed to contemplate situations where the ex-president retained the right to invoke the privilege, and not just to request that the current president do so.

I don't think you mean U.S. v. Nixon, because Nixon was still president when that was decided. I think you mean Nixon v. GSA. But that case — while frustratingly muddled — at most can be said to stand for the principle that the former president might be able to assert privilege if the current president supports him.

[T]he fact that neither President Ford nor President Carter supports appellant's claim detracts from the weight of his contention that the Act impermissibly intrudes into the executive function and the needs of the Executive Branch. This necessarily follows, for it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.

But it's really dicta, because the court held that the scheme created by the Presidential Records Act didn't violate executive privilege at all, so it didn't matter who might hold it.

[Ridgeway]

"But that case — while frustratingly muddled — at most can be said to stand for the principle that the former president might be able to assert privilege if the current president supports him."

We are not disagreeing too much. I very much agree with the "hopelessly muddled" characterization, but to me that an interpretation that it extends privilege to ex-presidents in some circumstances is non-frivolous. It may ultimately be wrong, but is is not frivolous today.

The reason I brought up the a/c privilege in the corporate officer context was to illustrate how often people are wearing two hats at the same time, so it is impossible to separate the individual's privilege from the corporate privilege. Where a single communication is at issue, that means that the individual's privilege (non-waivable by the corporation) trumps (excuse the pun) the corporation's privilege (which would otherwise be waivable by the corporation).

[Martinned]

You mean admitting all the elements of a criminal offence the way Trump did on social media yesterday?

https://twitter.com/Roshan_Rinaldi/status/1565274859252367360

[Joe_dallas]

Ridgeway
September.1.2022 at 9:21 am
Flag Comment Mute User
"The difference is that Hillary gave back or destroyed all the materials she was not supposed to have.

Trump did not. If he had, this would all have gone away a couple of months ago."

Ridgeway - You are ignoring the lessons of purple and magic!

So what if HRC gave them back (except for the 30k missing emails). the Russians and chinese likely already had the info. In trumps case, he did not distribute the classified info to the russians or chinese.

[Ridgeway]

My point is that high govt officials are going to get a chance to come clean and avoid serious consequences. Hillary took advantage of that opportunity, and Trump did not.

As an aside, I always thought that Hillary's server was not intended to receive official State Dept communications. I think that was just sloppiness and hubris on her part. Instead, it was intended to get all of her personal, sleazy and/or embarrassing communications (particularly relating to the Clinton Foundation), and to keep them far away from any government systems.

[Joe_dallas]

Ridgeway
September.1.2022 at 10:15 am
Flag Comment Mute User
My point is that high govt officials are going to get a chance to come clean and avoid serious consequences. Hillary took advantage of that opportunity, and Trump did not."

I fully understand your point about clinton returning the docs - albiet after she bleached the hard drive.

The more important point is the russians / chinese already had everything. You are forgetting the lessons of magic and purple. So the fact that she supposedly gave everything back is moot in terms of national security.

[Ridgeway]

I don't think we KNOW that third parties hacked Hillary's server, just that they tried. Just like we don't KNOW what Trump was actually doing with the files he kept.

Also, AIUI, the FBI was able to figure out what classified docs ended up on Hillary's server by essentially reverse engineering things -- they traced all the outgoing emails that were directed to that server. So they had a decent idea of how sensitive the materials actually were.

I am not trying to defend Hillary here. What she did was bad, and probably would have gotten someone who was not a high govt official thrown in jail. But what Trump did was materially worse in terms of brazen lawbreaking.

[Joe_dallas]

both were bad - Though again - most of the anti trump and partisan hrc/biden are ignoring the lessons of magic and purple.

Its hard to argue that what trump did is worse in terms of national security - in view of HRC unsecured server.

[Ridgeway]

It is hard to judge the actual harm to national security one way or the other. Those emails may have had lists of double agents (that would be a very bad fact), or they could have had talking pooint for public speeches or meetings that have already happened (that would be a pretty meh fact).

Just like we don't know what was in Trump's files or if or with whom he shared any of them.

[Joe_dallas]

true we dont know, but the japanese didnt know we listened in on them via magic and purple.

Guess which one had the higher (much higher) probability of causing real damage.

[Brett Bellmore]

As I recall, they stated that the security was so bad on her server that it was possible to hack into it without leaving any logs, so that they really couldn't say how many times it might have been penetrated.

[Joe_dallas]

Thanks for clarifying and updating the point -

The failure to grasp which is worse -
Trump had possession of classified documents
Clinton for all practical purposes distributed classified documents with the lax security.

[Jason Cavanaugh]

Where does your failure to honestly represent the facts fit in?

[Joe_dallas]

dont let your partianship blind you from all the facts

[Jason Cavanaugh]

Your description of why Trump is facing potential indictment is nothing short of a deliberate misrepresentation of the facts. Your interpretation of the Clinton situation is, at best, an extreme stretching of reality.

He stole NDI, including classified documents, and then willfully refused to return them, and obstructed not only the investigation into the same, but also the attempts to retrieve them.

In other words: You're (still) a liar.

[Joe_dallas]

Jason - you fail to acknowledge my original point
A) both actions are bad
B) Clinton's actions were far worse from a national security point of view.

Trump had classified documents and refused to give them back
Clinton had classified documents , instead of giving them back, she bleach bit her server. Prior to bleaching her server, it remained unsecured which allowed most anyone access.
You seem to forget the lessons of purple and magic.

I presume you are familiar with the purple and magic code history.

Again you are letting your hatred of Trump blind you to which of the two bad actions was worse

[Nige]

b) is simply not true. It's a fevered fantasy you have through speculation, inference and bad faith.

[Jason Cavanaugh]

As I thought I made clear, "B" is not true.

I seem to recall that it was said that no intrusions were detected on her server.

To say that she "for all practical purposes distributed" classified documents because of it is blatantly false.

[Life of Brian]

I seem to recall that it was said that no intrusions were detected on her server.

That's politely known as wishful thinking. Alt-right Politico reminds us:

An unknown individual using the encrypted privacy tool Tor to hide their tracks accessed an email account on a Clinton family server, the FBI revealed today.

The incident appears to be the first confirmed intrusion into a piece of hardware associated with Hillary Clinton’s private email system, which originated with a server established for her husband, former President Bill Clinton.
* * *
The new report also revealed that one of Clinton’s IT aides enabled Remote Desktop Protocol on the server, despite known vulnerabilities in the protocol.

The last part is particularly galling. RDP has been such a swiss cheese mess of vulnerabilities over the years that activating it on a machine hung directly off the Internet is nearly as bad as just publishing your login credentials. Worse, once attackers get in they can use other vulnerabilities to escalate their privileges to a level where they can clean up after themselves and not leave any traces of the intrusion.

And even if nobody specifically knew about and targeted the server, the odds of nobody running across it during the time it was in service are statistically zero: malicious actors run bots constantly scanning arbitrary IP addresses for open ports for services like RDP.

[David Nieporent]

Clinton for all practical purposes distributed classified documents with the lax security.

Clinton did no such thing. Your knowledge about this appears to be as extensive as your knowledge of COVID: you decide what you want to think and then hunt for some obscure blog by an unqualified person who you mistakenly think is telling you things that support your preconceptions.

Again: Hillary's server was not for classified information at all. There's little reason to think it was less secure than her official State account would've been. If someone did send her classified info there, and it very occasionally happened, that was not bad due to the fact that she had her own server; it was bad because they shouldn't have been sending it outside of SIPRnet or higher.

[Joe_dallas]

David your assessment that Hillary 's server was not for classified data - yet it was.
Regarding my comments regarding covid - name one thing I got wrong.

[Life of Brian]

Hillary's server was not for classified information at all.

"Not for" and "did not contain" are two vastly different things -- I imagine that's why you worded it so carefully.

Please join us for a rousing chorus of "what difference at this point does it make?"

[David Nieporent]

I did indeed word it carefully, because the distinction makes all the difference in the world for the purposes of criminal prosecution. Hillary did not establish a personal server to store classified information. She established a personal server for stuff allowed to be there (personal stuff, of course, and also regular work stuff. It was certainly not a good idea to do the latter, but it was not a crime.) The only way classified info got there is if other people improperly sent her stuff there. That's very different than affirmatively stealing classified info and then refusing to give it back.

[Joe_dallas]

David Nieporent
September.1.2022 at 11:33 pm
Flag Comment Mute User
"I did indeed word it carefully, because the distinction makes all the difference in the world for the purposes of criminal prosecution. Hillary did not establish a personal server to store classified information."

Your description of Hillary's purpose simply is not true.

If it were true, why did she delete the 30k of emails?
If it were true , why did she bleachbit the Hard drive?
If True , why did she take a hammer to her blackberry

Most people would call that obstruction of justice.

[Davedave]

Clinton was trying the usual thing for politicians of evading scrutiny by using private emails etc. Getting caught is usually a career ender, though she was pretty Trumpian in trying to brazen it out.

[Joe_dallas]

Ridgeway
September.1.2022 at 9:21 am
Flag Comment Mute User
"The difference is that Hillary gave back or destroyed all the materials she was not supposed to have."

She bleached byte her server prior to giving it back - called obstruction of justice - yet she got the democrat privilege pass.

[Nige]

It's not Democratic privelege if multiple investigations fail to turn up any actual crimes.

[damikesc]

You mean destroying evidence means no crime was committed?

Really?

[Nige]

In that particular instance it was decided that no, no crime was committed.

[damikesc]

Cannot figure out why some people think the Mar a Lago raid was bullshit. Cannot fathom why.

[Nige]

It's because their guy isn't supposed to be investigated for the crap he did.

[David Nieporent]

It's worse to knowingly steal classified documents and then lie about it than it is to use a private email account that a few people stupidly sent classified information to.

[Joe_dallas]

David Nieporent
September.1.2022 at 4:09 pm
Flag Comment Mute User
".... it is to use a private email account that a few people stupidly sent classified information to."

1) those are not the facts &
2) you know those arent the facts

other than that you are correct

[OtisAH]

DOJ’s charging decisions will not be impacted by whether Turnip declares for 2024. And I’m not quite sure how you galvanize people who are already galvanized. More MAGA will try to vote 2-3 times than tried in 2020? Heaven forfend.

Y’know what *might* impact DOJ’s charging decisions? All of Turnip’s Twuth Social posts where he stupidly admits the timeline is as the DOJ said, that he had the docs DOJ thought he had, and that he had the docs stored exactly where and how DOJ thought.

Then there’s his LOLawyers…

[John F. Carr]

Right now the armed violence is on the fringe. On the left, one guy tried to kill a Supreme Court justice. On the right, one guy tried to shoot up an FBI office. MAGA types provoked by a prosecution may shoot at more federal agents. May start acting like Antifa. May start acting like the right wing's vision of Antifa.

I don't count January 6 as armed violence because using a stick to beat up a police officer doesn't meet my personal threshold for "armed". Legally it does count as armed.

[bernard11]

A stick, John?

A flagpole is not a "stick." And there was a lot more going on. Your description is wildly inaccurate.

[Life of Brian]

A flagpole is not a "stick."

Be careful you don't prove too much with your choice of prejudicial label. The wielder was 72 years old.

[M L]

That's what they want. To continually wreck and delegitimize institutions, blackpill the nation, and then quietly step back while people start shooting each other.

[Sarcastr0]

LOL, what the fuck?

[Rev. Arthur L. Kirkland]

This is what the Volokh Conspiracy has become.

A flaming shitstorm of partisan polemics a half-step above QAnon level, kept afloat a bit my misappropriating the franchises of some good law schools that made a few hiring blunders.

[The Margrave of Azilia]

"Garland's choice about whether to indict Trump"

I wasn't aware that the Attorney-General could issue indictments. Could anyone clarify this for me?

[Bored Lawyer]

The prosecution takes it to the grand jury. Which almost always indicts, there is even an aphorism about a ham sandwich that relates to it. It's a sad reality, but it's a reality.

So, in practical reality, the AG decides. The rest is a formality. Same if his assistant typed out the indictment, you would not say that the assistant made the decision.

[The Margrave of Azilia]

So it's like the Communist Party of the Soviet Union deciding to pass a law, and the Supreme Soviet rubber-stamps it?

There seems to be something out of order with the grand jury system. Unless we assume these are all perfectly legit charges they're rubber-stamping.

I don't know about the federal level, but I sometimes hear of cases at the state level where the grand jury won't indict. To be sure *some* of these cases are where the prosecutor is passing the buck for a case he doesn't want but fears public reaction if he openly says he won't prosecute. But they can't all be like this.

[Bored Lawyer]

It's more subtle than that. The grand jury system is a one-sided presentation. There is no defense, so the prosecution can present only the most damning evidence. There is rarely cross-examination (jurors can do it, but generally don't). The prosecution gets to present only the cases it wants. And, in the federal system at least, the proceedings are secret. And the legal standard is not high -- probable cause.
So it is not hard to get an indictment from a federal grand jury.

[The Margrave of Azilia]

I'm interested in all of this, but checking on the probable-cause part: the Fourth Amendment mentions probable cause in regard to warrants, but the 5th Amendment is silent on the standard for grand juries. If they could specify probable cause for warrants, they could have specified it for indictments, but they didn't.

[Davedave]

The grand jury indictment thing is rather unimportant, really. A case that can't get past that stage is so weak there's no chance of a conviction, so (usually) nothing is ever put before a GJ that there's even the slightest chance of them refusing.

The GJ only has to see evidence that there is a case to answer, and that's a very, very low bar to get over. To quite a large extent it's archaic, the US equivalent of English judges' wigs and gowns - and the English have mostly abolished those in the last couple of decades.

[The Margrave of Azilia]

By the same token, *trial* juries seem to be going the way of wigs and gowns too.

Likewise with the Fourth Amendment, the First, probably the Second...at least we still have the Third for now.

[The Margrave of Azilia]

"The GJ only has to see evidence that there is a case to answer"

I know that's the *practice,* but nowadays we can't call something constitutional just because it's a common practice. It used to a common practice to say marriage was between a man and woman.

I'd like to see the textual evidence that grand juries have to indict without deciding whether the suspect is in fact guilty. Probable cause applies to warrants under the 4th Amendment, but strangely they failed to put probable cause in the 5th Amendment.

[Davedave]

"It used to a common practice to say marriage was between a man and woman."

No, it really didn't. Where do you nutjobs get the idea your weird version of what marriage is is the only version of what marriage is? The founding fathers certainly didn't believe any such thing. You're fixated on a slightly loony Victorian shibboleth.

[SRG]

Yeah - it seems that the only time a grand jury doesn't return an indictment is in police shooting cases where the DA deliberately throws the case so he can then say that, oh yes, we really wanted to go after these cops but the grand jury, what can you do? so please don't riot.

[SRG]

Thus Andrew McCarthy:

https://www.nationalreview.com/2022/08/why-yesterdays-doj-filing-suggests-a-trump-indictment-is-coming/

He makes it bloody clear that Trump's declassification claim is utter bullshit.

[Ridgeway]

Lots of VC commentators call McCarthy a right wing hack, but I thought that article was excellent.

[Mr. Bumble]

Now your a fan of McCarthy and NRO?

[SRG]

A fan? No. But NR in general and McCarthy specifically tend to have more integrity and honesty than most right-wing sources, even if I will commonly disagree with them, and they can't be dismissed as libtards or Dem shills or RINOs. Their conservative credentials are impeccable and so when they have an article on Trump that runs counter to what the Trumpsuckers believe the latter group cannot convincingly argue that they're being paid by Soros or this week's Emmanuel Goldstein.

[SRG]

Note that someone can be honest and wrong.

[Ridgeway]

You don't hang around enough Trumpies. To them, NR represents everything that is wrong with the Right -- a combination of neocons, RINOs and GOP Inc.

[Davedave]

Well, you should know, what with being one - or at least the next best thing, one of their useful idiots.

[SRG]

Ah. I know that one of my Trumpsucking ex-colleagues does occasionally cite McCarthy and NR without any obvious disapprovel, though he is more inclined to cite the usual political fantasy sites.

[jdgalt1]

Not just every Democratic member of Congress, but also the Big Media, have made it their one and only mission since 2016 to smear and persecute Trump in every way they possibly can, including making up multiple phony scandals (Russian collusion, Ukraine-gate, the Steele dossier, January 6, and both impeachments) to try to get him either fired or sent to prison. If any of them had anything that would stick, he would have been indicted long before now.

Now they've doubled down again, by searching his home on a general warrant that on its face shows no cause to believe a crime has occurred. Obviously the real reason for that is that Trump has the goods on somebody high up in the present administration, and they wanted to take that evidence away from Trump before he is back in power and can prosecute. Fortunately they failed -- Trump or somebody working for him has it hidden somewhere else.

[Jason Cavanaugh]

Is it lonely being the only one in your reality?

[Rev. Arthur L. Kirkland]

jdgalt1 seems a standard right-wing commenter at the Volokh Conspiracy these days.

[M L]

If I understand correctly, the President has unfettered discretionary power to declassify things.

But the bureaucrats may say, oops, you didn't file the right bureaucrat form or follow the right bureaucrat procedure, gotcha, now you go to prison!

Cool, cool. Nice banana republic you have there.

[Davedave]

"If I understand correctly, the President has unfettered discretionary power to declassify things."

You don't understand correctly. Trump falsely claimed that, but it is in any case completely irrelevant to the case at hand, which involves theft of government property, lying to the FBI, and so-on.

[Michael Ejercito]

And the FBI gets to lie to courts?

[M L]

"You don't understand correctly. "

What are the limitations on the president's ability to declassify information? I would have hoped you'd explain and support rather than flatly assert.

[Don Nico]

ML,
The President cannot arbitrarily declassify material deemed classified by an act of Congress, namely, the Atomic Energy Act of 1954, as amended.
POTUS can declassified material classified under Executive Orders, so call National Security Information.

[Davedave]

The POTUS does not have the ability to declassify information. He can only say the classification doesn't matter, or order others to declassify it.

But, as I said, that's completely irrelevant here.

[David Nieporent]

The POTUS does not have the ability to declassify information.

Yes, he does.

[FrankInFL]

An indictment for a criminal offense activates the 6th amendment. Does Trump want "compulsory process for his defense"? Damn betcha! If what the DOJ alleges is even partially true, Trump knows where many bodies are buried. DOJ/FBI do NOT want certain questions asked in open court, and especially not under oath.

[Davedave]

More insane conspiracy theories. Criminals can't get away with their crimes simply by threatening further crimes. They simply hold the sensitive parts of such hearings behind closed doors, when criminals insist on making such things necessary.

[The Margrave of Azilia]

Maybe Professor Volokh can have an item for his casebook - can the public be excluded from criminal trials of former Presidents?

[Don Nico]

"conspiracy theories"
You love those magic words for rejecting statements that you don't like

[Davedave]

"Trump knows where many bodies are buried. DOJ/FBI do NOT want certain questions asked in open court"

This is literally a theory about a conspiracy, Nicky dear. Now run off back to class, teacher is waiting for your homework.

[Noscitur a sociis]

Imagine being dumb enough to think that Trump's legal strategy is smart.

[Michael Ejercito]

https://ethicsalarms.com/2022/05/22/its-confirmation-bias-stupid/

Can we trust the same people who gave the illusion of credibility to the Russians®™ Stole the 2016 Election propaganda campaign?

[Nige]

Can you trust the same man who knew the Russians were interfering with the 2016 election to his benefit and decided he was cool with that?

[Mr. Bumble]

Repeating lies does not make them true, no matter how many times you do it.

[Michael Ejercito]

The hoax originated from the Hillary Clinton campaign!

[Nige]

Just repeating some key findings of the Mueller Report.

[David Nieporent]

Just repeating some key findings of the Mueller Report.

And the Republican-led senate investigation!

[Joe_dallas]

is the Mueller report even credible?

It mentions the Steele Dossier 14 times, but not once does it acknowledge that the Steele Dossier was fabricated and paid for by the clinton campaign.

[David Nieporent]

Yes, it is even credible.

And I have no idea what your point is about the dossier. Yes, it mentions the dossier a bunch of times. So what? It doesn't rely on or endorse the thing. In several places it points out inaccuracies in it. It mentions it only to provide context for the investigation.

[Moderation4ever]

I cannot help but think that an indictment is inevitable. Donald Trump will push until one is issued. Trump is a man who has always avoided the natural consequences people learn from. As a young businessman his father cover his loses, growing older he declared bankruptcy leaving himself wealthy and his creditors poorer, and when no reasonable person would loan to him, he got loans from sketchier people. in politics the Republican never stood up to him and were always humoring him. Saying he needed time to absorb the 2020 lose. Well, he never learns and he will keep on rule breaking till someone puts a stop to it.

He is 76 years old and has the wits of a teenage juvenile delinquent. He will keep on doing the wrong thing till someone stands up to him and that will be an indictment.

[SRG]

And then Susan Collins will decry proceeding with a trial after the indictment saying that Trump has finally learned his lesson, so no need to prosecute.

[Moderation4ever]

Agreed.

[Don Nico]

You've got that right , M4