He Got his Man

The AG is not supposed to be the President's personal attorney.

“Trump and Barr” by The White House is in the Public Domain, CC0

One of Donald Trump’s main gripes about the tenure of Jeff Sessions as Attorney General of the United States was that he wouldn’t function as Trump’s personal attorney. For whatever flaws one might wish to criticize Sessions for, he did understand that he was Attorney General of the United States and not DJT’s fixer.

One of the ways in which Trump has degraded the US government is that he appointed a man to replace Sessions with someone more than willing to fix things for Trump, Bob Barr.

Here’s the latest example via the NYT: Justice Dept. Intervenes to Help Trump in E. Jean Carroll Defamation Lawsuit.

The Justice Department moved on Tuesday to replace President Trump’s private legal team with government lawyers to defend him against a defamation lawsuit by the author E. Jean Carroll, who has accused him of raping her in a Manhattan department store in the 1990s.

In a highly unusual legal move, lawyers for the Justice Department said in court papers that Mr. Trump was acting in his official capacity as president when he denied ever knowing Ms. Carroll and thus could be defended by government lawyers — in effect underwritten by taxpayer money.

Yet again, government in the private interest of Trump and not the broader public interest.

This is matter that pertains to actions he undertook as a private citizen, not an official of the US government.

“The question is,” said Steve Vladeck, a University of Texas law professor, “is it really within the scope of the law for government lawyers to defend someone accused of lying about a rape when he wasn’t even president yet?”

But, if we want the real motivation:

The motion also effectively protects Mr. Trump from any embarrassing disclosures in the middle of his campaign for re-election. A state judge issued a ruling last month that potentially opened the door to Mr. Trump being deposed in the case before the election in November, and Ms. Carroll’s lawyers have also requested that he provide a DNA sample to determine whether his genetic material is on a dress that Ms. Carroll said she was wearing at the time of the encounter.

So, he is using the power of the Department of Justice to protect himself from potentially embarrassing disclosures during the campaign (which also suggests a lack of confidence in his assertion that Carroll is lying).

More background:

Mr. Vladeck said that while it was fairly uncommon for the Justice Department to assume the defense of a private matter on behalf of any government official, it was even more extraordinary for department lawyers to seek to shield Mr. Trump’s personal behavior behind a screen of “sovereign immunity.” If the federal judge in Manhattan assigned to the case agreed with the department’s arguments, Ms. Carroll’s lawsuit would effectively be over, Mr. Vladeck said.

Some current and former Justice Department lawyers, speaking on the condition of anonymity, echoed Mr. Vladeck’s concerns, saying they were stunned that the department had been asked to defend Mr. Trump in Ms. Carroll’s case. By moving to take control of the matter, the department had raised a critical question, the lawyers said: Was it truly within the scope of a president’s duties to comment on the physical appearance of a woman who had accused him of rape?

The grotesqueness of this administration continues unabated.

FILED UNDER: *FEATURED, Donald Trump, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Kathy says:

    Barr is Trump’s new fixer.

    While Trump should be investigated and prosecuted, it’s also important to go after Barr.

    18
  2. de stijl says:

    Barr’s reign over DOJ is shocking and disturbing.

    This should not happen.

    What Trump has done to DOJ makes me want to take to the streets. No justice, no peace.

    I’m nearly 57. I do not want to be a street fighter in the 2020 re-enactment of Reds vs. Brownshirts and Blackshirts.

    I don’t want to, but I will do it if necessary.

    I’m not even a Red. I am an incrementalist center left guy.

    25
  3. Scott says:

    I am astounded that plain old corruption is not a theme of the Biden election campaign. They can’t run just on COVID-19 incompetence. Corruption pervades the Trump administration, his businesses, his personal life and so forth. They can do both.

    10
  4. mattbernius says:

    @Scott:

    I am astounded that plain old corruption is not a theme of the Biden election campaign.

    I suspect that they may think that that topic is already baked into voters. Additionally, there may be concerns among staff that “corruption” is also the Trump campaigns best line of attack on Biden (which has seemed to be the direction they were going in for quite a while (hence the acts that led to impeachment).

    8
  5. Scott says:

    @mattbernius: Well, you do have to tie these things into issue voters care about. Like: “You may not care that Trump is a serial rapist but do you want your Medicare dollars defending him?” Or: “They tell you there is not enough funding to get a timely VA appointment but they have funding to defend Trump on a rape charge?”

    The corruption theme against Biden, as bogus as it is, is targeted toward grievance, the “swamp”, and deep state. Which motivate Trump voters.

    5
  6. Daryl and his brother Darryl says:

    The Hyde Amendment prevents spending taxpayer money on abortions.
    Apparently it is OK, however, to spend taxpayer money to defend a credibly accused rapist.
    I can only hope that the judge in this case laughs in Barr’s face.

    11
  7. MarkedMan says:

    This has the potential to be an own-goal of epic proportions. Democrats talking about this rape case may have been a touchy proposition, but Democrats talking about Trump using the AG and taxpayer dollars to defend him in a rape case that occurred while he was a private citizen? That’s free game. If the words “Trump” and “Rape Case” doesn’t occur at least every three minutes whenever a Democrat opens their mouth they should be sued for malfeasance. (Perhaps the AG could defend them?)

    12
  8. mattbernius says:

    Hey, look what just popped up in my newsfeed — seems sadly on point:

    The 2020 National Catholic Prayer Breakfast will be streamed online on Sept. 23 the organization announced on Wednesday. The event will honor Attorney General William Barr.

    https://www.catholicnewsagency.com/news/ag-to-be-honored-at-virtual-catholic-prayer-breakfast-10978

    2
  9. gVOR08 says:

    Little Jeffy Jeff Sessions played it a little more straight because he didn’t want to get hit with an obstruction of justice charge. Barr seems unafraid of any consequences. He seems to think Trump will cover for him for another four years, if not longer. He seems little concerned that Trump will lose. I wish I knew why.

    4
  10. Kathy says:

    @mattbernius:

    I guess a virtual breakfast makes for a sufficiently long spoon.

    2
  11. steve says:

    Listening to NPR on way to work they claimed, I think, that if the DOJ takes this over then the defamation claim goes away because the government cannot be sued for defamation. (IANAL)

    Steve

    1
  12. CSK says:

    @gVOR08:
    Unless he has the goods on Trump, why would Barr think Trump would cover for him once he’s outlived his usefulness?

  13. Joe says:

    As Mikey noted in today’s open thread, this action from the DOJ is a delay tactic. I infer from the reporting that DOJ filed a removal petition to get the case “removed” from state court and into federal court. The merits of the removal petition (laughable as they appear) are evaluated by the federal court, but there is months long procedure to conduct that evaluation. Even assuming the federal judge laughs in Barr’s face, it will be a while before this gets back to the state court to implement its discovery orders. This strikes me as a simple abuse of process. It would be a nice detail if Carroll obtained sanctions (attorney’s fees) for the DOJ’s frivolous filing – but still months away.

  14. An Interested Party says:

    Barr seems unafraid of any consequences.

    Why should he be afraid of consequences? What’s anybody going to do to him…

  15. @gVOR08: I think Barr is steeped in right-wing media and is a True Believer that his version of Christian ConservatismTM is threatened by the Radical Socialist SquadTM.

    (And while I am being snarky, I am serious).

    16
  16. @An Interested Party:

    What’s anybody going to do to him…

    Indeed. Fantasies about prosecutions of Trump admin types aside, it is unlikely that anything is going to happen to them once they are out of office.

    5
  17. Just nutha ignint cracker says:

    @gVOR08: I’m not seeing why acting like a mob lawyer affects Barr. Congress has a hearing, impeaches him, kicks him out of office. Some other entity that needs a corrupt lawyer pays him big buks to do the same sh!t for them. It’s an old story. It’s not like he goes to jail or gets disbarred, or am I missing something?

  18. dmichael says:

    @Steven L. Taylor: Why do you believe that none of them will be prosecuted post-Trump?

    2
  19. @dmichael:

    Why do you believe that none of them will be prosecuted post-Trump?

    I think we have a long-standing aversion to such practices and that that approach (let’ move on!) will prevail again. There is also the fear that once you start, it will be an endless cycle every time an administration leaves office.

    This is not my preference, mind you, but I think it will be the likely reality.

    The other part is: a lot of this stuff isn’t illegal, per se, but rather an abuse of power/office and norm-breaking.

    For example: what law is Barr breaking in the story in question? I find the action appalling, but am not certain it is, strictly speaking, illegal (although I would be happy to be corrected).

    6
  20. Kathy says:

    @dmichael:

    Not speaking for Steven, but I tend to concur.

    My reason is Joe Biden. He’ll be a perfectly capable president, but he’s nostalgic for the days of more civil politics, and thus he won’t risk angering the other side by prosecuting those in their party, no matter what the misbehavior, corruption, etc may have been, or how much they damaged the country.

    Given a large enough electoral loss in November, the GOP may acquiesce to prosecute Trump, the better to disown him and regain electoral share. Assuming the Covidiot base is not fanatically hell-bent in propping up Trump for a third run in 2024. They still lack spines, and they still fear that base.

    I hope Biden appoints someone as AG who will realize the need to prosecute any crimes int eh past administration, regardless of other considerations. But I don’t expect it.

    6
  21. mattbernius says:

    @Steven L. Taylor:

    The other part is: a lot of this stuff isn’t illegal, per se, but rather an abuse of power/office and norm-breaking.

    100% this. And the scary part is that folks waiting in the wings, who are far more politically savvy (like Tom Cotton), are internalizing that lesson.

    I don’t see us turning the norming guardrails that used to exist into laws (at least not with the current construction of Congress). And so, I fear, that the next President who decides to walk this path, maybe far more efficient and effective than the current resident of the White House.

    10
  22. Mu Yixiao says:

    @Kathy:

    Biden should issue a pardon for Trump.

    Because if he’s pardoned, that must mean that he did something illegal. If he didn’t do anything illegal he wouldn’t need to be pardoned…. right? 😀

    4
  23. Jax says:

    @Steven L. Taylor: The Durham investigation is a bald-faced attempt to find illegality on the part of the Obama administration, so why shouldn’t we investigate the Trump administration? I realize that his base is never going to believe any findings that show the full scale of Trump’s corruption, but the rest of us deserve to know how deep the rot is.

    9
  24. Kathy says:

    @Mu Yixiao:

    You know, the first thing that came to mind upon reading your comment was Mel Brooks* saying “There must be thousands of pardons in the King’s desk. Execution… Execution… Execution… Execution… Execution…”

    *In History of the World Part I

    2
  25. gVOR08 says:

    @Steven L. Taylor:

    it is unlikely that anything is going to happen to them once they are out of office.

    ‘tis true,
    ’tis true ’tis pity,
    And pity ’tis, ’tis true

    That we don’t punish bad behavior in high places may, perhaps, contribute to having so much bad behavior in high places. But,

    DISBAR BARR

    makes a nice bumper sticker, no?

    6
  26. ImProPer says:

    I don’t understand why history’s most competent man doesn’t just represent himself.
    Surely America’s champion against corruption
    must see the danger of setting precedence for his successor, unlikely to have his level of resolve for truth, justice and the American way.

    1
  27. Scott says:

    @Steven L. Taylor: I once believed that also. I thought it was correct when Ford pardoned Richard Nixon and allowed him to become and elder statesman, etc. I now believe I was wrong and we were wrong to allow powerful, famous people get away with law breaking just because they are powerful and famous. That got us to where we are today. A place where respect for laws and norms are thrown out the window. A place were a law like the Hatch Act is just scoffed at. A place where perjury can be tolerated as politically acceptable. A place where man and power are more important than a system of laws that regulate the whole society. Keep this up and there will be a revolt. And it won’t be pretty.

    13
  28. ptfe says:

    Just to add more perspective: The AAG of the Environmental Division of DOJ (Jeffrey Bossert Clark) was moved over on Friday to the Civil Division. There is currently no AAG in the Civil Division, and Clark has taken the role of “Principal Deputy Assistant Attorney General”. He is the signatory on the request to remove this to federal court.

    So not only has DOJ been pushed into doing this, but Barr rearranged the department to make it happen.

    7
  29. de stijl says:

    @Scott:

    At that time I thought Obama’s desire not to actively investigate Bush era crimes was proper and smart.

    Not so sure anymore. We committed war crimes. Yoo is now a professor at Berkely; that is so not right on so many levels.

    Torture is a crime. We must not do it or condone it. That era was foul.

    10
  30. reid says:

    @Scott: Yes. As others are saying, there are so many offenses and so many serious lines crossed, that this can’t just be swept under the rug. People wring their hands about investigating previous administrations becoming the norm, but that can’t be a rationale for allowing any and all bad behavior. We can’t be afraid to fight for and do the right thing.

    4
  31. gVOR08 says:

    @de stijl:

    Torture is a crime. We must not do it or condone it. That era was foul.

    Not to minimize torture, but so is invading a country that is not a threat to you. We had cover from a UN resolution, but a resolution obtained by fraud.

    3
  32. Just nutha ignint cracker says:

    @Jax: I’m probably more of a plausible deniability fan than most people in this particular forum, but I’m not sure “knowing how deep the rot goes” is that useful of a body of information. Sadly, it’s entirely possible that a deep dive type investigation of the sort some seem to be advocating will simply show how pervasive and far reaching self-dealing goes. How do we know that we won’t find out unsavory things about almost every member of Congress and the capital-based bureaucracy? We can hope, sure, but the risk is palpable.

    Of course, we can limit the investigation to just Trump/the GOP and prove that it is the witch hunt RWNJs have been saying it is, I guess.

    The sort of Truth and Reconciliation Commissions for which some are wishing are probably good for nations where the system is undergoing complete overhaul/sea change–and even then, the salutary effects are dependent on the goodwill of the Truthers/Reconcilers. I’m less optimistic about how such things might work in a nation such as ours, where we’re not going to rebuild from the ground up. (And probably couldn’t get to agreement even if we tried to.)

    2
  33. Raoul says:

    This does seem to indicate Barr and Trump communicate on a regular basis unlike Barr’s assertion to the contrary. Very peculiar and he does seem to think he is Trump’s personal attorney.

    3
  34. Jay L Gischer says:

    As I see it, the problem before us is that the entire “rule of law” concept is under assault. It only is a thing if the politics support it, and we can see the politics of both sides has reasons to not support it. We see plenty of Democrats, for instance, not too interested in investigating the crimes of previous administrations. That might be because they think the charges are overblown, or it might be because they think it would be a distraction.

    Pretty clearly, Trump doesn’t care about rule of law at all, except when it’s a way to “win”. But if you don’t support the law when it’s not in your favor, you don’t support rule of law as a concept.

    So, how do we support rule of law. This is important, and I’m not sure how we get back on track. There are people out there who quite consciously and deliberately are working to undermine it every day. Who is working to support it and build it up?

    5
  35. Gustopher says:

    @Just nutha ignint cracker:

    How do we know that we won’t find out unsavory things about almost every member of Congress and the capital-based bureaucracy? We can hope, sure, but the risk is palpable.

    I’m fine with lots of heads rolling. Corruption should be punished regardless of party.

    On the other hand, if Republicans feel there is a witch-hunt affecting them, perhaps they will be open to some limits on executive power that will bring us away from the brink of authoritarianism.

    3
  36. Gustopher says:

    @mattbernius:

    Additionally, there may be concerns among staff that “corruption” is also the Trump campaigns best line of attack on Biden (which has seemed to be the direction they were going in for quite a while

    Agreed.

    Trump is going to do everything possible to paint Biden as corrupt as a Trump. It’s bullshit, of course, but for low information voters, they will sigh and say “both sides are awful” and either not care or just not vote.

    Trump cannot accuse Biden of running the country for the past 4 years, even with lies, so the failed Covid response is a better attack.

    I would like Biden to come out stronger against police violence — and tie that to Trump saying he wants the police to take their gloves off. It’s not quite true, as police violence has been a problem for decades (centuries?) but it’s never been explicitly encouraged from the top before.

    1
  37. @gVOR08:

    Not to minimize torture, but so is invading a country that is not a threat to you. We had cover from a UN resolution, but a resolution obtained by fraud.

    Stipulating that I do think the Bush administration should have been investigated, what crimes were committed?

    Yes, torture is illegal, but the Bush admin created legal authorities for their “enhanced interrogations” that would very likely protect them in court.

    And it is not illegal to pursue a stupid war, nor is it illegal to obtain a UN resolution by fraud.

    I am not defending the Bush admin, nor am I being pedantic. I am trying to point out that a lot bad things aren’t actually illegal and even when they might be, obtaining a conviction can be hard.

    I think this matters as we think about what failures in the past mean in terms of accountability as well as when we try to think about what plausible routes forward really exist.

    5
  38. JohnMcC says:

    No one above seems to have made the simple connection that Mr Trump & Mr Barr are essentially saying the being an utter asshole is part of the presidential job description. He was following the exact game plan that most of the mouth-breathing right-wing media figures would have advocated he take when he slandered Ms Carroll. It was exactly what his partisans would have recommended. If he’d done anything other than defame her it would have been a terrible disappointment to the people he performs for.

    And he IS performing. It’s all a show for him.

    The voice that’s missing is that of Ms Paula Jones, isn’t it? Or perhaps Ms Levinsky who seems to have had the foresight to save the unwashed dress and guide Ms Carroll’s strategy.

    1
  39. JohnMcC says:

    Post-election prosecution of defeated administration gets quite a bit of traffic above. Don’t have too much to add except to observe that a ‘Truth & Reconciliation’ type investigation would turn up quite a lot of things that are extremely ugly and even blatantly illegal but that should not be prosecuted because of the precedent of imprisoning political enemies.

    There are, however, some things that could be exposed to public view that would be so far past acceptable that clapping some politicians in prison would absolutely be the right thing. I am thinking in particular of the CIA ‘black sites’ and torture. And of course of the greater-than-zero chance that Mr Trump actually is a co-conspirator with Mr Putin.

    If our president is in fact an agent of a foreign adversary we should remind him of the Rosenbergs.

    4
  40. dmichael says:

    So… we are now in the position where, according to an OLC memo, the President may not be criminally prosecuted while in office and when out of office, the incoming administration should turn away and “move on” apparently because the Republicans won’t cooperate on anything because the new admin will have made them angry. Oh please. That really worked out well for Obama. As to what crimes were committed by the Bush admin regarding torture, the USA is a signatory to a international convention that says countries not engage in it. If we have a Biden administration, it should disclose all information that might lead to a criminal prosecution of Trump or his lackeys. Otherwise we will have Trump and his other professional liars given with face time on TV and treated with respect. As to John Yoo, Condi Rice and Colin Powell, they should have been tried at the Hague.

    6
  41. @dmichael:

    we are now in the position where, according to an OLC memo, the President may not be criminally prosecuted while in office and when out of office, the incoming administration should turn away and “move on”

    And therein lies a major problem with the OLC memo (but, of course, even without the OLC memo, can you see Barr DOJ proceeding with an indictment?)

    We have a very serious rule of law problem on our hands.

    As to what crimes were committed by the Bush admin regarding torture, the USA is a signatory to a international convention that says countries not engage in it.

    I agree, but you are missing my point: what US law was broken?

    4
  42. DrDaveT says:

    @Kathy:

    I guess a virtual breakfast makes for a sufficiently long spoon.

    Oh, well played!

    2
  43. Kathy says:

    About prosecuting past administrations, IMO the one real lesson of economics is that people respond to incentives.

    So give people an incentive to break the law, and they will break it. not all of them, not all the time, but a great many will. Consider, too, politicians tend to be egotistical and have an exaggerated notion of their own importance. So they’re already predisposed to abuse their power.

    We need to change the incentives.

    6
  44. Kathy says:

    @DrDaveT:

    Thanks.

    I thought it would be too obscure a reference.

  45. JohnMcC says:

    @Steven L. Taylor: I am not trying to be argumentative and I AM NOT (by the grace of god) a lawyer. But a quick google search pointed to several laws that might fit that crime. US Code 118C paragraph 2340 appears numerous times. The issue that makes prosecution difficult is not that torture of a foreign adversary is somehow something that’s slipped the minds of our law makers. The issue is that it happened overseas.

    I’m thinking that reports and directives went back and forth quite a bit on the topic and that those communications are archived and both would constitute a crime themselves and prove that crimes were committed. Perhaps not. But if not a strong effort to prosecute the bastards who did this IN MY NAME and YOURS would still signify to future intelligence operatives that they cannot simply put the camps in Poland and the world would never miss the Jews.

    It would also possibly reassure the folks who share this planet that the U.S. is not likely to practice ‘extreme rendition’ and ‘enhanced interrogation’ in future. That would be nice.

  46. @JohnMcC:

    The issue that makes prosecution difficult is not that torture of a foreign adversary is somehow something that’s slipped the minds of our law makers. The issue is that it happened overseas.

    And it happened with OLC guidance that the “enhanced interrogations” were, in fact, legal. I don’t like this fact, but I think those memos would have protected admin officials from prosecution.

    Again, I am not saying I like not am I defending it. But unless the laws are changed and new mechanisms put in place, this is what the outcomes will continue to be.

    3
  47. DrDaveT says:

    @Mu Yixiao:

    Biden should issue a pardon for Trump.

    Perfect. And it should be itemized. Running to 4 or 5 pages…
    …and then listing the ones he is NOT pardoned for.

    3
  48. Kurtz says:

    @Jay L Gischer:

    So, how do we support rule of law. This is important, and I’m not sure how we get back on track. There are people out there who quite consciously and deliberately are working to undermine it every day. Who is working to support it and build it up?

    I think it’s more likely we, or likely any other nation, has ever truly been on the right track.

    Maybe there have been a few farting in that general direction, but flatulence ain’t shit.

  49. MarkedMan says:

    @Steven L. Taylor: A memo is not a law. You go to jail for violating laws, not memos

    2
  50. @MarkedMan:

    A memo is not a law. You go to jail for violating laws, not memos

    The OLC advises the president on what is legal and what is not. And while the OLC can certainly be wrong, can you envision a court in the law convicting a president who, in the pursuit of national security goals (from that president’s perspective) after that president had been told by the OLC that the action was interpreted to be legal?

    I honestly can’t.

    (That this is problematic is true, but that doesn’t stop it from being a fact).

    3
  51. Let me note, because it feels like maybe I am being unclear: there is a major difference between how things actually work and how one might wish them to work.

    5
  52. gVOR08 says:

    @Jax:

    The Durham investigation is a bald-faced attempt to find illegality on the part of the Obama administration, so why shouldn’t we investigate the Trump administration?

    That. The concern is that it will start a cycle of politically motivated investigations. Same argument as the filibuster – oh noes, if we do something the GOPs might do something. Haven’t the GOPs adequately demonstrated they’ll do whatever they can get away with, whether Ds ever did it or not. They’ve already done Benghazi, HER EMAILS!!!!!, tried to bribe Ukraine into faking evidence, and now Durham. What are they gonna do if we investigate Trump, his kids, Barr, and all the rest of them? Refuse to consider a Supreme Court nomination?

    8
  53. @gVOR08: I think a lot of this thread conflates investigations with prosecutions, while one may lead to the other, they are not the same thing.

    The real thing that needs to be done is for a Democratic Congress to pass various structural reforms to address the obvious holes in the system, including giving the AG even more independence from the President than is currently the case, among other things.

    5
  54. Kathy says:

    @gVOR08:

    The concern is that it will start a cycle of politically motivated investigations.

    I’m fine with that.

    A party can rile up its base, but with an independent judiciary they cannot imprison people without evidence of guilt beyond a reasonable doubt.

    Ergo, politically motivated investigations won’t ever result in prosecutions. Unless there’s a there there*, in which case that’s a good thing.

    If I were Biden, I’d urge the DOJ to drop the prohibition on prosecuting the president while in office, and draft an executive order, and pursue legislation, making it crystal clear the president is subject to criminal investigation when warranted by the facts, and the executive branch must cooperate with such investigations, as well with Congressional subpoenas, limited only by the Fifth amendment protection against self-incrimination.

    Let’s not just say “the president is not above the law,” but rather bind the president and their office firmly and clearly to the law.

    *Not a typo

    5
  55. JohnMcC says:

    @Steven L. Taylor: I just hate it when I think someone who I have a great deal of respect for seems to me to seriously incorrect. And it’s particularly galling when the activity in question happened literally in the last century. This is the last I’ll say:

    As I understand it (and Wikipedia agrees) the OLC policy was established by Mr Yoo who was an author of the policy. It rested on the destroyed evidence (videotapes! They taped it!). And it rested on the assumption that sleep deprivation (to the point of hallucinations) and waterboarding were not thought to be torture — by the persons doing the torture.

    Thank you for the honor of the reply. I’m sure we both have hopes that some near-future Congress addresses what U.S. policy should be in this matter.

  56. Kurtz says:

    @Steven L. Taylor:

    I think a lot of this thread conflates investigations with prosecutions, while one may lead to the other, they are not the same thing.

    When I read <a href="@Mu Yixiao: “>Mu’scomment seems to be a bit of humor, but maybe…

    I am pretty sure that Trump will attempt to pardon himself at some point. But if he doesn’t, then Biden pardoning him isn’t the worst idea in the world if an investigation followed by a prosecution is off the table. And even if Trump does attempt the self-pardon, Biden could still issue a pardon, arguing that it’s better to keep the courts out of it.

    At the very least, it’s a costless olive branch that Biden is in a unique position to offer because he is a one-term President. Even better, it also provides cover to appoint a commission to investigate potential crimes without it looking punitive, because the goal wouldn’t be prosecution but finding out the truth.

    I’m doubtful it would work, but it’s worthy of a waste pitch in the forum.

  57. @JohnMcC:

    I just hate it when I think someone who I have a great deal of respect for seems to me to seriously incorrect.

    It would be helpful if you could detail how and where you think I am incorrect.

    I am not defending Yoo’s memo, nor the policy.

    I am making a straightforward statement about the degree to which Bush would be able to lean on the OLC advice as a defense against his actions.

    Again: do you think that a President, who could claim that he was acting in good faith to pursue the national security of the United States and did so with legal advice stating he could do so, would be convicted in a US court? (And, again, under what statute?).

    Another way of putting it:

    1. It is hard to find a statutory basis to charge a president under the circumstances in question (it isn’t like he, himself, went in the WH basement and waterboarded someone).

    2. Any president would be able to mount a legal defense in court if that president had sought and received legal advice.

    What jury is realistically going to convict a US president under those circumstances?

    After all, Presidents regularly order the killing of people, which is again the law, except when it is done under cloak of pursuing national security, yes?

    I honestly feel like you are missing my point (or that I am failing to explain myself),

    Again, I am not talking about a normative (i.e., moral) stance. I am talking about an empirical, what would happen, stance.

    2
  58. Mu Yixiao says:

    @DrDaveT:

    Perfect. And it should be itemized. Running to 4 or 5 pages…
    …and then listing the ones he is NOT pardoned for.

    No no no. You’re missing the point. A list of offenses would result in a call for evidence and proof.

    Biden should pardon Trump with…

    In the hope of reconciliation, in the spirit of forgiveness, and with the greatest respect to this powerful and humble office: I hereby grant a broad and binding pardon to Donald Trump inclusive of any and all crimes–felony and misdemeanor, federal and state, criminal and civil–that he committed while serving as the 45th President of these United States.

    With this action, it is my hope that we can put these sins behind us and, together, rebuild the strength, wisdom, and integrity the world has historically attributed to the Office of the President of the United States.

    That says that Trump is guilty of so very many things–but we’re better than that. We are able to forgive and move on.

    If anyone asks “What sins?” Biden can say “There’s no purpose in making a list. He’s been pardoned of everything. We’ve moved on from that.”

    It’s a higher level of the old “have you stopped beating your wife?” tactic.

    2
  59. Kathy says:

    @Mu Yixiao:

    I would neither itemize it, nor give a general pardon.

    I’d have Trump allocute under oath before a joint session of Congress and the full Supreme Court. With the understanding that any falsehood or omission is not covered by the pardon.

    1
  60. Gustopher says:

    @Steven L. Taylor: I think one might be able to show that the memo was designed to give (non-binding) appearance of the cover of law to illegal acts. There was a vigorous public debate about what constitutes torture, and Geneva conventions that define torture, so some things we did are going to be outside the grey zone, even by the standards of the time. And they were likely not always careful in their emails and drafting.

    I think it would be a hard sell, but doable.

    I also think a jury of 12 is likely to have a pro-torture person on it.

  61. Mu Yixiao says:

    @Kathy:

    @gVOR08:

    The concern is that it will start a cycle of politically motivated investigations.

    I’m fine with that.

    A party can rile up its base, but with an independent judiciary they cannot imprison people without evidence of guilt beyond a reasonable doubt.

    I’m not so fine with that. Because the independence of the judiciary is not as strong as people want to believe.

    And politically-motivated prosecutions often lead to “purges”.

    I’ve repeatedly said that the smartest thing Xi Jinping did was to “campaign” on the plank of eliminating corruption. It gave him carte blanche to accuse anyone who didn’t/doesn’t pledge fealty to him and obey his every command.

    It would be harder in the US, but if one party has a strong majority, they can start a campaign of “eliminating corruption”. I’m pretty sure there’s dirt (actual or “close enough for headlines”) on most elected officials.

    If Biden wins, and the Dems take the House and Senate, they could start a purge (judges can be impeached) that would say “You’re with us or you’re a target”. They wouldn’t even have to win all the cases. Drag a judge’s name through enough mud and they lose their authority.

    I don’t see this actually happening, but given the hyper-partisan nature of politics these days, I don’t want to even create a toe-hold.

  62. Moosebreath says:

    @Mu Yixiao:

    “I’m not so fine with that. Because the independence of the judiciary is not as strong as people want to believe.

    And politically-motivated prosecutions often lead to “purges”.”

    Agreed.

  63. JohnMcC says:

    @Steven L. Taylor: Proposed: That a trial in Federal Court could have had authority to determine that the OLC memo is subservient and overruled by U.S. Code 18, paragraph 2441, “the War Crimes Act of 1996”.

    It seems to me you vote no. I vote yes.

    1
  64. Jim Brown 32 says:

    @Steven L. Taylor: This is also where precision of language comes into play. If enhanced interrogation is torture, then what do we call what Saddam Hussein and other despots do/did to their rivals? Electrocuting testicles and pulling out toenails. They clearly are different. A skilled torturer earns his money by keeping the subject from dying. This is not the end of the pool US techniques dove in. This is not to defend enhanced interrogation–but what also cannot be ignored is the atmospherics for how this became an option to meet a need.

    3
  65. Jim Brown 32 says:

    @Steven L. Taylor: Mostly because, it’s different when its YOU with the responsibility for what happens. The responsibility calculus shifts massively to outcomes and not means when you own the problem as opposed to commenting about the problem from a position of non-responsibility.

    3
  66. Jim Brown 32 says:

    @Steven L. Taylor: This. Congress is a broken institution–and has been for 30 years. Assuming the stars align and the Democrats win the trifecta–we’ll then know how seriously they view the threat of imperial Presidency. They’ll have the perfect opportunity to fix it. Im skeptical because there really isn’t an incentive for Congress fix anything–you don’t drive fundraising and turnout by fixing problems. Fixing problems lowers the incentive to donate and vote.

    3
  67. Kathy says:

    @Mu Yixiao:

    I think in the US, the judiciary is independent enough.

    And I wouldn’t advise purging judges appointed by Trump the King of the Covidiots, except for well-justified cause.

    I would advise packing the Supreme Court, but that’s another matter, as would be various measures like expanding the House, setting nationwide standards for drawing districts, DC statehood, Puerto Rico statehood, etc.

  68. @JohnMcC: I think we are squarely in “you are missing my point” territory.

    Proposed: That a trial in Federal Court could have had authority to determine that the OLC memo is subservient and overruled by U.S. Code 18, paragraph 2441, “the War Crimes Act of 1996”.

    It seems to me you vote no. I vote yes.

    The issue isn’t how I vote. The issue is, that’s not how trials work.

    You would have to charge Bush with a specific crime and he would mount a defense.

    Put it another way: why do you think police officers so often are not convicted even when the evidence is overwhelming?

    All it takes is one juror (and likely it is more than one) who thinks the cop was just trying to do his job to protect the community.

    Do you not see the parallel?

    1
  69. @Gustopher:

    Proposed: That a trial in Federal Court could have had authority to determine that the OLC memo is subservient and overruled by U.S. Code 18, paragraph 2441, “the War Crimes Act of 1996”.

    It seems to me you vote no. I vote yes.

    Not just a pro-torture juror, but a juror who believe it was acting in good faith to protect the country.

    1
  70. Jen says:

    I understand the need to not appear to be prosecuting political opponents.

    And if there were but ONE Trump offense, I could likely be persuaded that it’d be best to pardon and move on. All presidents are faced with troubling circumstances that in hindsight are viewed through a different lens.

    HOWEVER.

    The daily, near-constant stream of never ending sh!t that is coming from this particular White House does not deserve to be blanket-pardoned. The emoluments violations, the Hatch Act violations, the attempts to use the Oval Office to pressure foreign governments to go after his perceived enemies, the *constant* lying and obfuscation

    Were I Joe Biden, I’d be developing the narrowest of pardons for a single one of the offenses–probably something to do with covid. Just a fig leaf of “see, I don’t persecute my political opponents” and then let the chips fall where they may.

    Simply put, Trump and others cannot be permitted to get away with the many, many, many violations of law and norms. This isn’t a normal administration, this isn’t normal behavior. Barr should lose his reputation, his license to practice law, and whatever finances he has. These people are criminals, full stop.

    7
  71. DrDaveT says:

    @Steven L. Taylor:

    I am making a straightforward statement about the degree to which Bush would be able to lean on the OLC advice as a defense against his actions.

    I suspect that the disagreement has to do with the extent to which bad legal advice absolves one of crime. If my attorney assures me that sticking knitting needles into peoples’ brains is not a crime, and I act on that advice, I seriously doubt that any jury would let me off.

    This seems obviously true, since otherwise you could absolve any crime preemptively by simply having an attorney assure you that it isn’t a crime. If that person were not an attorney, we would call this “conspiracy to commit murder”.

    1
  72. DrDaveT says:

    @Kathy:

    I’d have Trump allocute under oath before a joint session of Congress and the full Supreme Court. With the understanding that any falsehood or omission is not covered by the pardon.

    This makes much more sense to me than Mu Yixiao’s idea, whose value eludes me. What do we gain by (re-)establishing the precedent that Presidents (and their stooges) are immune from any consequences of even their most egregious actions? You can’t have a moral victory over Trump, any more than you can out-debate your cat.

    2
  73. DrDaveT says:

    @Gustopher:

    I also think a jury of 12 is likely to have a pro-torture person on it.

    Only if the prosecuting attorney is entirely incompetent at voir dire.

  74. DrDaveT says:

    @Jen:

    Simply put, Trump and others cannot be permitted to get away with the many, many, many violations of law and norms. This isn’t a normal administration, this isn’t normal behavior. Barr should lose his reputation, his license to practice law, and whatever finances he has. These people are criminals, full stop.

    Given the cooperation by the GOP Senate and Trump’s appointees, I think a RICO prosecution would be the best approach. Let’s not just take down the individuals; let’s take the GOP out with it as a (provably) corrupt organization.

    3
  75. @DrDaveT:

    I suspect that the disagreement has to do with the extent to which bad legal advice absolves one of crime. If my attorney assures me that sticking knitting needles into peoples’ brains is not a crime, and I act on that advice, I seriously doubt that any jury would let me off.

    Indeed, not.

    But, again, that really isn’t the scenario here–not even close.

    The scenario here would this: how possible would it be to convince a jury of 12 Americans that Bush truly thought that he was protecting the country and that he ever cared enough to seek advice, which told him that what they were doing was legal and, again, did I mention how he was fighting to save the country after the worst foreign attack on the US mainland since the war of 1812?

    Hell, we still haven’t rescinded the AUMF, which would also be part of a legal defense by Bush or a Bush official.

    “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

    Again, what’s the route to guilt beyond a reasonable doubt? After all, he was using force against the bad guys. Do you want another 9/11, sir? DO YOU?

    Etc.

    2
  76. Here’s another way to come at my general point: the US government has proved itself mostly impotent to do basic things (note that we are again going to need a continuing resolution to keep the government open start 10/1).

    Why is everyone so certain that there is going to be some likely justice outcome for Trump?

    Note: I am not saying not to want it or not to fight for it (first step: elect Biden and Democratic Congress), but I simply was noting what the likely outcome is going to be (and then went down a rabbit hole about prosecuting Bush).

    The reality, too, is that two years (which is the time horizon until the next election) means if the Dems do win it all, it is going to have to prioritize what it does. And one can only expect so many big things in two years.

    Were it up to me, I would rather see some big reforms (like adding states) or more autonomy got DOJ instead of trying to squeeze some justice of Trump. Or even enhanced voting rights and money for elections. And, let’s not forget, the incoming administration is going to have to deal with the pandemic and Biden will have to work to repair a lot of international relationships.

    3
  77. @Steven L. Taylor: And BTW, if such a trial happened, using either the OLC torture memos or the AUMF as a defense, the case would likely end up with SCOTUS and then a definitive ruling could be rendered (or they could sidestep it).

    Of course, such a process could take years.

    But none of that really gets to the question of holding previous administration’s accountble, at least not immediatetly after an administration is over.

  78. A Biden DOJ could try to charge Trump with obstruction of justice as per the Mueller probe. That could be very interesting, and likely appropriate. While I, personally, think he obstructed, I am not sure how strong the legal case is. For the DOJ to do that would require and solidly ironclad case.

    1
  79. MarkedMan says:

    @Steven L. Taylor:

    can you envision a court in the law convicting a president who, in the pursuit of national security goals (from that president’s perspective) after that president had been told by the OLC that the action was interpreted to be legal?

    Most certainly, if it was shown (as is true in Bush’s case) that he appointed these officials specifically to give him such advice.

    The fact that Bush, Cheney, Yoo and the rest of the torturers weren’t convicted is evidence of lack of will, not legal justification.

    4
  80. MarkedMan says:

    @Mu Yixiao: @Steven L. Taylor: The very idea that a prosecutor should withhold charges from a public official because they fear a juror is anathema to justice.

    I have a lot of respect for your opinions, but not in this case. You are elevating moral cowardice to pragmatism.

    2
  81. Just nutha ignint cracker says:

    @Mu Yixiao: Uhh… no, on both counts.

    2
  82. HarvardLaw92 says:

    @Steven L. Taylor:

    Yes. Reliance on the advice of counsel is not, in and of itself, a shield against culpability for criminal acts. It is simply a factor to be considered, in concert with all other available factors, in assessing whether an ordinary person of good sense would have known the acts in question to be unlawful. Bush has no automatic shield here from prosecution simply because some guys at OLC got creative with respect to treaty interpretation.

    I think maybe you’re arguing that a court would be reluctant to to convict a prior president. I won’t necessarily disagree, but there is zero statutory impediment to prosecuting him. Off the top of my head, the torture statute, the war crimes statute, section 804 of the Patriot Act, and the conspiracy statute come to mind. Is it likely to happen? No. Is there any legal basis for saying it can’t happen? Also no.

    4
  83. de stijl says:

    @HarvardLaw92:

    That era was so foul. People sick on hubris should not ever be allowed to pull the levers of policy making and governance.

    Yoo should be in a deep dark dungeon pondering his misdeeds, instead he is a professor at UC Berkeley. Shenanigans!

    I declare shenanigans. This should not stand. It insults justice.

    1
  84. @HarvardLaw92:

    has no automatic shield here

    To be clear, that is not my argument.

  85. @HarvardLaw92:

    Is it likely to happen? No. Is there any legal basis for saying it can’t happen? Also no.

    The issue to me, at least as it pertains to this specific example, is the relative probabilities of these two outcomes.

  86. @MarkedMan:

    The very idea that a prosecutor should withhold charges from a public official because they fear a juror is anathema to justice.

    That’s not what I said. I brought up jurors in terms of discussing probable outcomes.

    I have a lot of respect for your opinions, but not in this case. You are elevating moral cowardice to pragmatism.

    Sigh.

    Also not what I said.

    I am trying to explain why these things don’t happen. I will confess to increasing frustration that people keep asserting that I am arguing in favor of these outcomes.

    And, further, the reality is most people in this thread are letting a lot of wishful thinking get in the way of thinking about how this all works.

    1
  87. @HarvardLaw92:

    Reliance on the advice of counsel is not, in and of itself, a shield against culpability for criminal acts.

    Let me come back to this: I agree, and I am not asserting that it is, nor am I asserting it would have been an absolute shield for Bush.

    But would you agree that he would have been able to construct part of his defense on the OLC advice? And would you not also agree that part of his defense would be based on CINC powers and his pursuit of national security? (Among other factors).

    I am not saying that he would be morally right to do so, nor am I saying there is 100% chance it would work, but given the deference the public pays to such items and actions, what are the odds that it would fail as a defense?

  88. @MarkedMan:

    The very idea that a prosecutor should withhold charges from a public official because they fear a juror is anathema to justice.

    A key point about this: if you are going to try and convict a former President of the United States, you had better be damned sure you can win the case because the implications of losing are huge.

    Forget the political fallout, and consider a simple example: if Bush were exonerated of torture charges, that would actually enhance the ability of future presidents to engage in torture.

  89. One last thought: I utterly, totally agree that the next administration and Congress should work to find ways to deal with the malfeasance of the Trump administration, which could manifest in a variety of ways. I do find it unlikely that there will be a bunch of prosecutions, however.

  90. keef says:

    Eric Holder…………………………and all the way back to Bobby Kennedy.

    1
  91. Just nutha ignint cracker says:

    @Steven L. Taylor: translate.cracker.com

    You are elevating moral cowardice to pragmatism.

    English: I hate what you said because it means I have no control.

  92. HarvardLaw92 says:

    @Steven L. Taylor:

    I agree that he is would be able to assert the advice of counsel as the basis for his actions, as indeed any defendant in a criminal proceeding would be. That’s generic criminal law, and he doesn’t lose a mitigating strategy available to everyone simply by virtue of having served as the president.

    I don’t agree that his defense would be based on those. I believe it would be based on a creative interpretation of the applicable mens rea standard to attempt to obviate intent. The simple fact that someone did something as CINC or in the interest of national security is immaterial. The policy isn’t that someone can’t be prosecuted for criminal acts committed while serving as the president – it’s that the president can’t be prosecuted for them until he/she leaves office.

    Were it to actually come to trial, which I think we both agree will never happen for a variety of reasons, the outcome IMLO would depend both on the selection of venue and the performance of the defense. Remember that, in practice / in the real world, trials are not about justice; they are about assigning blame. Depending on how well the prosecution did its job, there would be a larger than insignificant chance of his being convicted. I also believe that the time for such a proceeding has realistically long passed.

  93. I expand on at least part of this issue here.

  94. @HarvardLaw92:

    assert the advice of counsel

    I think it is important to underscore that an OLC opinion is far more than just advice of counsel, it is a legal interpretation rendered by part of the DOJ itself whose job it is to tell the executive branch what is legal. This is far, far more than advice of counsel.

  95. HarvardLaw92 says:

    @Steven L. Taylor:

    Thank you for your opinion on the matter (which is wrong, but I’m growing tired of the back and forth about it). I’m always interested when laymen try to educate me about the law.

  96. @HarvardLaw92: I am not trying to educate you about the law. My position is one of the political constraints.

    I would sincerely like to understand how an OLC opinion is nothing more than the advice of counsel. Most legal counsel is not given by the entity that has jurisdiction over the question of whether prosecutions will be pursued.

    Indeed, a legal expert noted elsewhere:

    It makes it harder to get the matter before a court, and that is solely because of the deference DOJ is ostensibly giving to its own work products.

    Which strikes me as rather different than if I acted on the legal counsel of my personal attorney.

    And trust me, I know all about laymen who think they are experts outside their field.

    2
  97. HarvardLaw92 says:

    @Steven L. Taylor:

    I would sincerely like to understand how an OLC opinion is nothing more than the advice of counsel. Most legal counsel is not given by the entity that has jurisdiction over the question of whether prosecutions will be pursued.

    OLC is an advisory body – solely an advisory body – that assists the AG in the function of providing interpretations of federal laws to the presidency and other executive branch agencies. Aside from some proofreading / reviewing of verbiage duties, that is its sole function. It has NO jurisdiction over, authority over, or involvement with the question of whether or not prosecutions will be pursued, and the AG under which it serves (as well as subsequent AG’s) are well within the scope of their authority to just completely ignore the opinions it issues.

    Deference is a choice made by the AG. He/she can just as easily choose not to give deference to OLC opinions.

    Think of OLC in the context of one of those toothless internal audit agencies which litter the Department of Defense. Their audit opinions carry whatever weight senior DOD leadership (which can decide to wholesale ignore and round-file them if it wants) decides to give them. On their own, they are powerless and toothless advisory bodies writing reports that have no force of law or authority.

    Auditors: “Here’s our opinion”

    Commanding General: “Thanks” (as he shitcans their report).

    That scenario describes the extent of OLC’s power and authority.

  98. @HarvardLaw92:

    Deference is a choice made by the AG. He/she can just as easily choose not to give deference to OLC opinions.

    Yes. It’s political.

    Also: the record is that AGs do tend to give deference to the OLC, which matters in terms of actual outcomes. You even said that yourself.

  99. @HarvardLaw92: Here’s what I don’t get:

    1. We both agree that presidents are unlikely to be prosecuted.

    2. We both agree that AGs show a great deal of difference to the OLC (an example of that kind of deference, albeit not by an AG was when Mueller stated that it was “unconstitutional” for a sitting president to be charged with a crime is not because that is what it says in the constitution, but rather that is the OLC’s long-standing interpretation).

    3. We both agree that OLC opinions do not create any kind of absolute protection.

    4. We agree that these choices are largely political.

    So what are you arguing with me about?

    The main area of disagreement, I guess, is that stuff like this:

    Think of OLC in the context of one of those toothless internal audit agencies which litter the Department of Defense.

    I think you are underestimating the relative weight of OLC opinions, but maybe I am leaning too much into accepting Goldsmith’s views/what I have seen with both the torture memos and the prohibition on presidential prosecutions. As in all of those cases, the OLC positions have had more influence on behavior than auditing reports.

    At a minimum, it is hard to see them as “toothless.”

    I think we also disagree about how OLC advice would play into a hypothetical trial, but such a trial is such a fantasy to begin with, all opinions about them are extremely speculative.

    I would note that I base my views on this on the fact that any presidential trial would ultimately be as much about PR and politics as anything else.