Sessions and the Deep State Defense: Trump’s Emerging Defense Against Obstruction Claims

jeff_sessions_official_portraitBelow is my column in USA Today on one of the lines of inquiry by Special Counsel Robert Mueller: the stated desire of President Donald Trump to fire Attorney General Jeff Sessions and his poor public criticism of the Attorney General for recusing. That inquiry has become more damaging with recent disclosures of an effort by Trump to convince or coerce Sessions to reverse his decision to recuse himself.  Despite renewed calls for obstruction charges or impeachment counts, there is a clear defense emerging for Trump based on recent comments.  Indeed, it may be the only viable defense that accepts these facts while rejecting the claim of criminal obstruction (other than the untested claim that Trump is effectively immune from such a charge).

Here is the column:

 

That latest report of special counsel Robert Mueller’s expanding investigation into obstruction of justice by President Trump follows a disturbing pattern of self-inflicted wounds. Trump allegedly called Attorney General Jeff Sessions to Mar-a-Lago in March 2017 to berate him for recusing himself from the Russian investigation and to demand that he “unrecuse” himself, as his lawyer Rudy Giuliani put it. Such a request would be as improper ethically as it would be grammatically.

What is most striking, however, is the Trump camp’s response to the story and what it  shows about the most viable defense to any case on alleged obstruction against Donald Trump: a type of justified self-defense.

Giuliani surprisingly did not deny the account but insisted, “ ‘Unrecuse’ doesn’t say, ‘Bury the investigation.’ It says on the face of it: ‘Take responsibility for it and handle it correctly.’ ”

For many, this was hardly a complete defense, and indeed it was not. The desire to put a “loyalist” at the head of an investigation is on its face troubling, and it is far more serious to seek such an advantage by demanding that a lawyer, let alone the attorney general, reverse an ethical decision made by himself and career Justice officials.

The challenge for Trump’s counsel is to develop a defense where such self-defeating acts become acts of self-defense. The defense would go something like this: Trump was convinced that the Justice Department was leading an effort to obstruct his administration or even engineer his removal as president. Trump had long denounced the Justice Department as a hostile agency. In addition to calling for an investigation into bias at the Justice Department, Trump sought to have his own appointees in key positions to guarantee fairness, including Sessions.

Trump can claim that, while his actions may be viewed as unorthodox or inappropriate, they were motivated by a real fear of a rigged investigation. Accordingly, he wanted his own attorney general to guarantee a fair investigation and not just leave him to the designs and discretion of a hostile agency.

This type of justified self-defense claim fits the long narrative of Trump. Starting in 2016, Trump spoke of an effort to rig the campaign and later to use the Justice Department to undermine his administration. It does appear that there was surveillance of Trump campaign officials, and the use of at least one informant to target advisers. Reinforcing this concern was the conduct of high-ranking Justice officials.

As soon as Trump got into office, Acting Attorney General Sally Yates took the unprecedented action of ordering the entire department not to defend his travel banpolicy. Yates was rightfully fired by Trump for her unjustified order.

Then there was the disclosure that a dossier paid for by Hillary Clinton’s campaign was actually used as the basis for surveillance of Trump associates.

And there are those embarrassing text messages and demotions of Justice Department officials after they showed open hostility toward Trump and his election.

Finally, there are allegations of false statements (including a referral for possible prosecution) and allegations of improper conduct, such as James Comey removing and leaking FBI material.

That might seem like a less than compelling defense, particularly when an independent investigation was started and would be overseen by his own appointee, Deputy Attorney General Rod Rosenstein. Indeed, it is the type of defense better suited not for acquittal but a hung jury. It allows a juror to agree on the occurrence of the acts but still vote to acquit on the intent behind the acts. The point is not to prove a deep state conspiracy but to show a reasonable fear that an investigation by this agency would not be fair.

It is a defense that is familiar to criminal defense attorneys. It’s most extreme, and most infamous, use occurred in the trial of Larry Davis, a well-known African-American figure who was suspected of a variety of serious crimes. In 1986, seven officers raided Davis’ apartment. Davis fired on them as they burst into the apartment late at night and wounded six. All of the officers were white except for one Hispanic officer. Davis’ defense was simple: The only reason white police officers come at night to the apartment of a black leader is to shoot him.

Defense counsel in the Davis case asked the jury of 10 African Americans and two Hispanics to use their experience and common sense in weighing the argument. Those officers, they insisted, where there to kill him, not arrest him. To the surprise of many, the defense worked. The jury announced “not guilty” 15 times and only convicted Davis on gun charges.

Certainly, Mar-a-Lago is a world away from Davis’ Bronx apartment. However, the basis for the defense is strikingly similar. The president is arguing that the only reason the Justice Department was investigating him was to frame to him, and he has long described himself as a “counterpuncher.”

It is a defense that could work. Where some see the president acting to obstruct or derail the investigation, others see the Justice Department as acting to obstruct or derail the president. Moreover, even if the president is wrong about his deep-state conspiracy theories, he can claim that his motivation was not just clear but expressly stated.

The Davis defense works even if jurors do not agree with assumptions of the defendant. In both torts and criminal law, there are defenses that can be based on reasonable mistake. The point is not that the defendant was right in his assumptions, but that there was a reasonable basis to believe that he had to act.

The conspicuous omission of a denial from Giuliani could reflect a decision that Trump’s defense is quickly being reduced to a fight over motivations rather than means. To convict Trump of obstruction of justice, Mueller must prove that the demand for “unrecusal” was not just unseemly but unlawful.

That depends on why Trump did it.

Jonathan Turley, a member of USA TODAY’s Board of Contributors, is the Shapiro Professor of Public Interest Law at George Washington University, where he teaches constitutional and tort law. Follow him on Twitter: @JonathanTurley.

209 thoughts on “Sessions and the Deep State Defense: Trump’s Emerging Defense Against Obstruction Claims”

  1. This whole debate centers on one false premise (Namely, that the DOJ is somehow independent of the Executive Branch. It isn’t and the President can direct or stop any investigation he pleases so long as it’s not done so with a malicious or wrongful intent which could subject him to impeachment) and the widely misunderstood criteria for impeachment of the government officials. The first is easy as the parenthetical information shows. The second bears some historical context.

    Impeachment is a political process (not criminal) and requires an enumerated offence (Treason (Constitutionally defined), Bribery (defined at Common Law), or other High Crimes and Misdemeanors (historically understood)). It’s intentionally vague but the terms “conviction” and “other” suggests a criminal context apart from “Treason or Bribery” and consisting of the magic words “high crimes and misdemeanors.” (“HCM”). Madison coined the original criteria with the text: “Treason, Bribery and Corruption,” but that didn’t suit the Committee working on the Article so it was jettisoned. George Mason of Virginia proposed adding “maladministration,” but Madison objected to it as so vague as to endanger the separation of powers between the branches with a malicious Congress finding anything the Executive did as “maladministration.” Eventually, the British term “high crimes and misdemeanors” was adopted with little fanfare or discussion.

    So what do lawyers and semi-lawyers (Madison) do when they can’t agree? Why they copy someone else’s work. In England, the term historically stood for crimes and other actions which proved the officeholder unfit for service. Things like “misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” [and] granting warrants without cause” were all cited as legitimate bases to cast out a rogue public servant.

    In Federalist 65, Hamilton defined the term HCM with a particularly American bent: ” “… those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

    While fuzzy, the process still requires an “offence” bearing upon the public trust and injury to society. How’s that for “clear as mud.” Impeachment is a serious matter with threats to the separation of powers being a real possibility if undertaken lightly. It needs a better standard.

    1. Your remarks are excellent.

      Whether impeachment needs further definition or not, as you note – it is a political, not criminal process, it is part of the checks and balances – it is the oversight that congress has of the president. It is the ONLY constitutionally authorized means to address the abuse of power of the president.

      Not only may the president direct the DOJ with respect to prosecutions – but past presidents have, both demanding that DOJ prosecute people, and demanding that they do not.
      There is no limit beyond impeachment on the presidents oversight of DOJ. There is no constitutional independence, and the “traditional” claim to independence is weak.

      None of this makes the president “above the law” – all it does is define what the lawful process is with regard to the president.
      The president is NOT subject to investigation, and prosecution by the executive – as the president is the executive.
      Article II, Section 1.
      The executive power shall be vested in a President of the United States of America.

      If you wish to “investigate” and “prosecute” the president, you must do so through congress.

      There are actually important structural reasons for this.
      What should be obvious to everyone right now is that if DOJ/FBI starts and investigation that touches on the president those associated with that investigation immediate become removed from ANY oversight they become completely independent – almost a 4th branch and unfireable with no oversight.
      They are barely responsive to the courts, unanswerable to the president or the voters, or to congress.

      There is nothing in the constitution that removes Rosenstein from the oversight of either the president or congress. Rosenstein has no independent constitutional power.

      The lawful process regarding the president is impeachment FIRST. If we do not like that we must change the constitution.

      Oversight of the president belongs EXCLUSIVELY to congress and the courts, Again if you do not like that change the constitution.

      One of the quite obvious failures of both the Comey investigation and subsequent Mueller investigation, is that the very people who failed in the Clinton investigation and who have a vested interest in the outcome of the Trump investigation are not only investigating Trump – but they are THWARTING investigation of their own past misconduct. All the priviledges by which the executive claims that it can refuse to cooperate with congress – belong to the president – not the DOJ/FBI.

      What has occured is that some portion of executive power has become untethered to the president and is now free floating in the hands of Rosenstein and Mueller – who are now immune from legitimate oversight.

      “Trust me” is not a grant of constitutional power.

      Dershowitz has had the best recomendation regarding this.
      Congress should create a commision – subject to congressional oversight to conduct this investigation.
      Mueller and his team can be transfered to that commission – if congress so chooses.
      Regardless, that investigation then falls under Congressional direction and oversight.

      At that point DOJ/FBI no longer have the slightest basis for failure to cooperate with the other congressional investigations that are occuring.

  2. Turley makes an interesting argument, today, based upon the hasty assumption that an obstruction of justice charge is the worst of Trump’s worries. T the contrary, Mueller can and will report a strong case for conspiracy to defraud the United States against Trump Jr., Kushner, Manafort, possibly Stone, Nunberg, Caputo, possibly Campaign Officials 1, 2 & 3, and maybe even Trump, himself.

    When Mueller reports the underlying charges the investigation of which Trump sought to obstruct, Turley’s magnificently hand-crafted, justifiable-obstruction of justice defense will evaporate like the morning dew.

    1. Bzzt, wrong.

      The fact that Kushner received his permanent TSC means that Mueller assured the FBI there were no pending or likely future charges against Kushner. If Mueller had been unwilling to do that Kushner would not have received a Permanent TSC, he could have continued on a temporary one for ever.

      There is BTW no “conspiracy to defraud the united states” crime.

      There is a reason that all the talk has devolved to this stupid obstruction claim.
      It is all that is left of Mueller’s investigation.

      It should be evident by now that Mueller leaks like a seive. If he had anything substantial – we would know it. Even if he did not have anything we usually get leaks with claims bigger than Mueller delivers.

    2. Most of the public is not privy to evidence that Mueller may (or may not) present.
      Late4Dinner is unique in that she has an inside track into the Mueller investigation….and that knowledge allows her to confidently declare that “Mueller can and will report a strong case for conspiracy to defraud the United States against Trump Jr., Kushner, Manafort, possibly Stone, Nunberg, Caputo, possibly Campaign Official 1, 2, & 3,and maybe even Trump himself”.
      Now that I know from our resident seer how this will all turn out, I’ll no longer have to waste time following these developments.

      1. Most of the public is not privy to evidence that Mueller may (or may not) present.

        The indictments Mueller has secured to date are a window on the sort of ‘evidence’ he actually has.

        Now that I know from our resident seer how this will all turn out, I’ll no longer have to waste time following these developments.

        When it doesn’t pan out, you might rub her nose in it later.

  3. The obstruction charges are and always have been humbug. The commonweal does not benefit from law professors pretending otherwise.

    1. Ordering a subordinate to violate the rules of an investigation is an attempt to obstruct it.

      DoJ rules are clear that officials that are involved in a case as a party to it cannot take part in or oversee the investigation of it.

      Mueller will find Trump’s efforts to make Sessions violate the DoJ recusal rules and take charge of an investigation in which Sessions is a witness is a clear attempt to obstruct.

      To take another example, the IRS answers to the president, but the president cannot order them to refund his taxes or to cancel an audit. The IRS has to follow it’s rules in determining which taxes to audit. If such an order was indeed possible, Trump would have exercised that privilege months ago.

      1. “Ordering a subordinate to violate the rules of an investigation is an attempt to obstruct it.”
        Nope. Every violation of the rules is NOT a violation of law. And you will be asserting that yourself soon enough. The entire Trump/Russia investigation was conducted OUTSIDE the DOJ/FBI Guidelines – many of which you can find online.

        “DoJ rules are clear that officials that are involved in a case as a party to it cannot take part in or oversee the investigation of it.”

        First DoJ rules apply to DoJ – not the WH. Nor do they trump the constitution and the law.

        Next your argument is circular. Comey reassured Trump privately, and ultimately testified publicly that Trump was not a target or subject of the investigation. Further we now know – that Comey’s investigation of Flynn had ended prior to Comey being fired, and more importantly that Trump KNEW it had ended.
        Comey had testified to the House and Senate that Flynn was not going to be prosecuted.

        So your argument blows up in your face.

        Next we KNOW that Obama was “involved” in the Clinton investigation. Obama and Clinton had emailed each other BOTH using private email accounts while Clinton was in Russia. The DOJ/FBI discovered that extremely early in the investigation. Comey specifically refers to it in his march Draft, and in the statement made public altered “president” to senior official.

        Based on your argument it would have been “obstruction of justice” for Obama or the WH to have any involvement in the Clinton investigation. Yet we know from Strzok’s texts that the WH was being briefed 3 times a week and that Obama regularly was part of those briefings.

        When you use ludicrously expansive interpretations of the law – you make everyone a criminal.

        While I think that Obama should have been more distant from the Clinton investigation, he deep involvement was not obstruction, just inappropriate – more so than Trump’s

        Regardless, you can not interpret the law to criminalize the actions of Trump and the Trump campaign without also criminalizing the actions of Clinton the Clinton campaign and Obama.

        1. If the president can order people to violate the rules of their departments, by that logic he could order the IRS to stop its audit of his tax returns.

          His pressure on Sessions to violate DoJ recusal rules was an attempt to thwart the investigation. All government employees need to follow the rules of the departments they work for. The president does not have the legal authority to decide which department rules employees can break with impunity.

          The comparison with Obama doesn’t wash. He never pressured Comey to drop the investigation into Clinton, nor did he ask DoJ employees to break the rules of their jobs to protect Clinton. Receiving updates of an investigation is not the same as overseeing it or being involved in its operation.

          Sessions is a witness in this investigation and pressuring him to ignore the DoJ rules in regards to witnesses of actions is blatant witness tampering. Witness tampering is a form of obstruction.

          McGahn’s efforts to persuade Sessions not to recuse himself under these circumstances could be evidence of a conspiracy to obstruct justice. The key area for further inquiry will be Trump’s motive. Obstruction of justice requires proof of a corrupt purpose.
          If Trump wanted to keep Sessions in charge of the Russia investigation so that Sessions could protect Trump, then trying to prevent him from complying with the DOJ recusal rules could provide a strong case for obstruction.
          Trump’s other statements about his belief that the role of the Attorney General is to protect the president adds important context to this evidence. In the end, Mueller will look to the totality of the circumstances to see if he can prove a corrupt purpose by Trump.

          1. “If the president can order people to violate the rules of their departments, by that logic he could order the IRS to stop its audit of his tax returns.”

            Yup, but he would probably be impeached if he did.

            You do not seem to understand that “no man is above the law” does not mean all laws apply in the manner that you wish.

            When Trump can legally do something that the rest of us find offensive – the remedy is impeachment.

          2. “His pressure on Sessions to violate DoJ recusal rules was an attempt to thwart the investigation. ”

            Or it was an attempt to bring a lawless investigation under control.
            Regardless, it was an excercise of his lawful powers.

            “All government employees need to follow the rules of the departments they work for.”
            Yes
            ” The president does not have the legal authority to decide which department rules employees can break with impunity.”
            Actually he does. Departmental rules apply to that department – not the president.
            Further he can just tell the department to change the rules.

            Where do you think the rules come from in the first place ?

            Constitution A2 S1

            “The executive power shall be vested in a President of the United States of America.”

          3. Please read the various 18 USC 15XX sections before spewing nonsense about obstruction.

            Each of these sections and subsections have very specific requirements.

            As I said the law is NARROW – not broad.

            You must take your fake obstruction claim, and find a section and subsection where EVERY SINGLE element is met, Further where specific terms are used – you must make sure that your claim fits the defintions used in that section or in 1515 for the that term.

            You can not cobble something together by taking bits and peices from different places.

            1. I am a police officer and know very well how criminal statutes are applied.

              18 U.S. Code § 1512 – Tampering with a witness, victim, or an informant

              (d)Whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from—

              (1)attending or testifying in an official proceeding; (…)

              or attempts to do so, shall be fined under this title or imprisoned not more than 3 years, or both.

              Ordering Sessions take control of an investigation in which he is named as a witness would prevent his ability to testify. Trump is afraid Sessions is (or will) testify against him.

              You’ve already acknowledged that Sessions should not oversee the investigation because he has a legal conflict of interest.

              Mueller will take his public and private harassment campaign against Sessions and use it as an attempt to silence a witness.

              The tampering need not have actually been successful in order for it to be criminal.

              We are seeing this situation play out right now. Sessions doesn’t want to work for Trump anymore but is staying there because he has the upper hand. He knows Trump is in trouble for trying to pressure him into a situation in which he cannot testify.

              1. There is no “official proceeding”. Nor was their at the time a “potential proceeding”.
                Sessions was interviewed by Mueller long ago.

                So you are a police officer – that explains alot.

                Overbearing, overbroad understanding of the law.

                I have met good and bad officers. I have never met one who actually understood the law.

                And as a typical officer you are clueless about human behavior and motivation.

                You really think that Jeff Sessions who recused himself from the Russia investigation and has endured all kinds of insults from Trump and threats to his job, is going to lie under oath to mueller to make Trump happy and save his job ?

                This is stupider than the claim that Flynn risked and lost his job to coverup a minor misstatement about his conversations with Kislyak, that Kislyak could not have known he made – because the russian could blackmail him into espionage aginst the US to protect his job.
                Remembering we are talking someone who lost his job in the Obama administration for failing to toe the corporate line on Iran – clearly a man with no principles who would sell out the country rather than miss a day of vacation.

                Please turn in your badge and save the poor people in your city from your harrassment.

        2. I have the experience of having taught legal ethics for 25 years dhlii, and you are absolutely incorrect that Rod Rosenstein is required to recuse himself.

          The fact that Rosenstein may be a fact witness in a case that he supervises does not provide sufficient grounds for his recusal under any of the applicable standards.

          Rule 3.7 lays out the rules for lawyers as witnesses and bars a lawyer from acting “as advocate AT A TRIAL in which the lawyer is likely to be a necessary witness.” This rule protects against a lawyer being both the source of evidence and an interpreter of it. These are roles that if conflated could confuse a factfinder and prejudice parties to the proceeding.

          Rule 3.7 bars this dual function only at trial, NOT when a lawyer is involved in an investigation or even in the pretrial stages of a case. To be sure, this rule might bar Rosenstein from serving as an attorney for the government in any criminal trial involving the president’s firing of Comey. But that scenario is extremely unlikely since Rosenstein, the second-highest ranking official in the department, is unlikely to appear as a prosecutor at a trial of Trump (or anyone else). If an obstruction case against the president or others prosecuted by the special counsel went to trial, Rosenstein’s only potential appearance would be as a witness, not as an advocate.

          Rule 1.7 precludes an attorney’s representation of a client in several scenarios, including in those where representation of a client will be “materially limited … by a personal interest of the lawyer.” If Rosenstein were, for example, himself a subject or target of Mueller, this rule would be implicated. But there is absolutely no reason to believe that Mueller is going after Rosenstein at this point, or should. Rosenstein penned a memo detailing Comey’s mishandling of the Clinton investigation, including some valid criticisms. But Trump publicly disclaimed reliance on Rosenstein’s memo when he told NBC’s Lester Holt that he fired Comey because of Russia and would have done so regardless.

          Some claim that recusal is required under broader conflict of interest regulations (5 CFR § 2635.502) that apply to all executive branch employees, lawyers and nonlawyers alike. But section 502 precludes a federal official’s involvement in a matter only in cases where that individual has a personal stake in the matter that would cause a reasonable person to question his or her impartiality in the matter, or a limited financial interest. Neither of these circumstances applies to Rosenstein. If he were to become a subject or target of the investigation, he might have a personal stake (or a financial one, since he might need to pay for a lawyer). As I have explained, he is far from being a subject or a target. The mere fact that Mueller interviewed Rosenstein last summer does not create a conflict.

          Republicans and FOX news continue to employ bogus “conflicts” attacks as part of their ongoing smear of Rosenstein, Mueller and other law enforcement professionals, while real conflicts of interests in this administration go unchecked.

          This administration is 1 or 2 indictments away from falling to pieces. They shouldn’t be throwing stones.

          1. MakeAmericaLovingAgain – since Rosenstein secretly expanded the powers of the SC and does supervise him (I use supervise in the loosest manner possible since it seems no one is supervising the SC), I do think he falls under the rule.

            1. Nowhere in the ethics rules does it state he has to recuse.

              He is not a subject or target of the investigation.

              He is not a witness in any trial. If he is called to be a witness in a trial, he won’t be prosecuting the case regardless.

              He doesn’t have a conflict of interest because he doesn’t have a personal stake in the matter since he is not a target or subject. Nor does he have a financial interest in anything in the investigation.

              Right-wingers are becoming afraid that the DoJ is going to expose Trump’s misdeeds. It is very common in these situations to attack the investigators rather than justify any impropriety discovered.

              We are 1 or 2 indictments from this administration collapsing on itself, which will probably happen by Christmas.

              1. MakeAmericaLovingAgain – I would not get my hopes up if I were you. Hope and Change are long over and now are circling the drain. Obama made the mistake of insulting Trump at the Correspondent’s Dinner in 2011 and there will not be enough of his legacy left to even put a name to it by 2020.

              2. For someone who purportedly taught legal ethics you do not seem to understand ethics at all

                Ethics is only weaking connected to rules. It is not like law, it is not about following the rules, it is about doing what is right rather than what is wrong. It is about doing what APPEARS to be right.

                Ethics is about your conduct when you have power over others. The standard is not – as it is with your individual conduct only effecting you – all is permitted except that which is explicityly denied.
                Ethics applies where you have duties – all is prohibited except than which is explicitly permitted.

              3. Please re-read what you have written.
                He does have a personal stake.

                You reflect the typical “ethical” idiocy of the left – interpret things broadly to go after your enemies and narrowly to defend your friends.

                The law is to be interpretted narrowly. The requirements of ethics are to be understood broadly.

              4. I have no doubt if Mueller continues long enough he will come up with more process crimes to justify his existance.

                But the odds of Mueller finding anything of substance died long ago.

                I also think you missunderstand your own risks.

                Mueller might function as a albatross arround Trump’s neck for now, but the longer this goes own without finding anything of consequence the more of an albatross he becomes fo the left.

                You have been frothing since the election over Trump russia collusion that cost you the election – well where is it ? Do you think getting Micheal Cohen for issues with Taxi Medalions is going to keep you from answering “where is the collusion you promissed ?”

                After the election I wanted Obama to pardon clinton and her staff and if not for Trump to do it and end the national nightmare.

                But the left is unprepared to accept their loss learn from it and move on.
                Now we have multiple IG investigations, and multiple congressional investigations in the to prior administrations. Obama who left office telling us he was scandal free increasingly appears to have succeeded in political corruption in a way that Nixon could not.

          2. Legal Ethics is an oxymoron.

            Please quit selling this garbage – a single rule is not the entirety of ethics – nor BTW is the Bar.

            Contrearas PROPERLY recused himself because he had Dinner once with Strzok.

            Sessions is less a fact witness in all of this than Rosenstein. Sessions connections to Russia were shallow and inconsequential. If Mueller is even discussing Obstruction – Rosenstein is right in the middle of that.
            Worse still Rosenstein is Mueller’s supervisor. Rosenstein decides what Mueller’s scope it.
            And is responsible to determine the proper boundaries of Mueller’s investigation.

            Further legal ethics – particularly for those in adjudicative roles – and that is Rosenstein who must determine the scope of Mueller’s authority, is the APPEARANCE of impropriety.

            I would further note that your Rule analysis has several other flaws – Rosenstein WORKS FOR THE PRESIDENT. The position he is in does not fit the traditional attorney/client rules and ethics that you are fixated on. to be clear Rosenstein is not Trump’s lawyer or employee, But he is the lawyer/employee of the government and he does work for the president.

            All of this and much more is why the SC law is garbage.

            The counter intelligence investigation did not require (or allow) an SC.
            Investigating the president had to be done by congress.

            I have no axe to grind with Rosenstein. From what I can tell he is less ethically challenged than most of the lawyers I know. But you and he are clearly wrong here. You are also fixated to closely on the narrowest part of the conflict.
            It is not just that Rosenstein is a witness – it is that he was INVOLVED
            Though I do not think either is true, it is argueable that he is either a co-conspirator with Comey to get Trump and get and SC appointer, or a co-conspirator with Trump in obstructing the investigation.
            Rosenstein is not a third party neutral fact witness, he is someone who was a part of the decision making process of the alleged conspiracy.

            And all of the above ignores his role in the prior investigation that is increasing under fire.

            I do nto think Rosenstien was involved from the start, But Rosenstein atleast signed off on several of the FISA warrant applications – in otherwords he swore that the facts in the warrant aplication were true and that they reach the standard of probable cause both that a crime has been committed and that the surveilance/search will produce further evidence of that crime.

            They did not which itself is evidence that the warrant application was weak. But more important was that the low standard for probable cause was not met.
            The FISA court is NOT an investigative body. That is why the constitution requires warrants to be sworn.
            Because the judge is supposed to trust the officers swearing to the warrant that what they have claimed is true.

            BTW the standard is NOT is a subject or target, it is could be. A prosecutor can not protect someone from having to recuse themselves by structuring he case to avoid conflict with them.

            Trump’s public statements are irrelevant to Rosenstein’s role. Trump’s statements can be used as evidence, they are not inherently final conclusions of fact, because he has asserted them.
            Further Trump has made conflicting claims. Some of that is Trump. Some of it is because when someone is fired there are usually many reasons, but only one “last straw”.

            I would further note that if you accept as fact Trump’s statement than Russia had nothing to do with the firing of Comey – you have also ceded your obstruction case at the same time.
            You can not have it both ways.

            In fact the very reason that Rosenstein is a witness is because what he participated in contradicts the claim that Trump made that Russia has nothing to do with Comey’s firing.

            I hope you are not a lawyer. Logic is not one of your skills. Further you seem only able to see things at the first order. You can not seem to understand that the very assertions of Trump’s you are claiming Rosentein can rely on to remain, are exactly the reasons he can not.

            If you must take something Rosenstein was a part of to be false to avoid rosenstein from recusing, and true to treat Trump as a subject – you have lost.

          3. Of course Rosenstein has a personal Stake – he wrote the memo that resulted (or not) in Comey’s firing. He signed off on the FISA Warrants. He himself is or will shortly be a subject in the IG/Hunt investigation.

            You seem to think the only “interest” is money.

            Sessions was correct to Recuse – though he had weaker reasons than Rosenstein.
            Rosenstein is incorrect not to.

          4. “This administration is 1 or 2 indictments away from falling to pieces. They shouldn’t be throwing stones.”

            We have been hearing that since before the election.

            Mueller is going further and further afield to get anywhere on anything.

            The Mueller investigation long ago cease to be an investigation of Trump/Russia collusion and became a political vendetta to get Trump – by whatever means necesary.

            We all know that a US prosecutor given enough rope can always find someway to prosecute someone.
            The left’s hope, your hope, and Mueller’s and Rosenstein’s reputation rest on having enough rope long enough that you can find SOMETHING, anything that can be parlayed into a crime.

            Not a Republican, not a Fox viewer. There are not as many as their ought. Democrats are showing they do not have the integrity republicans did in 1972, but there are some democrats speaking out.

      2. “Mueller will find Trump’s efforts to make Sessions violate the DoJ recusal rules and take charge of an investigation in which Sessions is a witness is a clear attempt to obstruct.”

        Highly unlikely, and wrong as a matter of law.

        I think that Sessions was correct to recuse, but he was not required to. That said Rosenstien is actually required to. He is now clearly a witness on several matters. He and Mueller have forestalled his recusal by Mueller avoiding questioning him. But you can not game recusal by structuring the timing.

        Rosenstein is ethically (not legally) obligated to recuse – even more than Sessions was ethically but not legally obligated to recuse. Rosenstiens failure to recuse is NOT Obstruction, nor is Trump’s efforts to get Sessions to resign.

        Among other things you are claiming that an effort of Trump’s is a crime because of what an unidentified third party might do in the future. Essentially you are claiming that Trump is going to fire Sessions appoint someone else who will fire Rosenstein and then Mueller.

        That is one possibility. Another is that the Senate will not confirm a replacement for Sessions and Rosenstein is acting AG. Another is that another AG is appointed who reviews things with Mueller and requires Mueller to conform his investigation to the law – to investigating actual crimes and removes the counter intelligence portion. Another possibility is this dies long before any of that happens – because as is increasing evident there is nothing there, and there never was.

        1. @dhlii: Please read this excellent legal analysis by Renato Mariotti, a federal prosecutor who has tried many obstruction of justice cases. He states that pressuring Sessions not to recuse himself despite DoJ rules and case law is an obstruction of justice because he was trying to manipulate the process to become more favorable to him.

          Since Sessions is a witness in the Mueller investigation, it is witness tampering to get him to violate the rules of DoJ witnesses. There is mountains of case law stating that witnesses in criminal investigations cannot oversee or be involved in DoJ investigations.

          Where did you go to law school, dhlii? Are you a prosecutor?

          https://www.politico.com/magazine/story/2018/01/26/mueller-trump-obstruction-of-justice-russia-216532

            1. What you are proposing is something very close to papal infallibility—that as the enforcer of the laws, it is not possible for the president to be investigated for breaking the laws.

              Clearly, the Founding Parents did not intend to create a position that was above the law. And if we consider any other area of presidential authority, it is clear this argument does not hold water.

              The president is empowered to command the United States’ military forces, and has broad authority when doing so. But he cannot order his commanders to do something unethical, like bomb his political opponents’ houses. There are clear limits to his power.

              1. Nope – The president is subject to the oversight of congress – they can investigate.
                And if they find something – they can impeach.
                After the president is removed he can be prosecuted.

                Trump can only pardon federal offenses. State and local laws remain intact and in force.
                The Federal government does not have “general police powers” so most crimes are and should always be subject to state and local law enforcement.

                When you mangle the meaning of the constitution – you create a mess.
                If you do not like the way things are – change the constitution.

              2. Actually he can order commanders to do something unethical.

                They are bound to follow orders or resign.
                No one is obligated to follow the orders of the president.
                But if they can not they can not remain in the executive.

                Each of us can decide what is moral – for US and act accordingly.
                But we can not decide (except through our vote) what is moral or proper for the government.
                Trump alone gets the final word on that withing the executive.
                Though even he is answerable to congress and the courts.

                But he is NOT answerable to every DOJ employee who has a novel criminal theory.

          1. We can play dueling legal experts forever.

            This is one of the problems with the left.
            The objective in analysing the law is NOT to reach the conclusion you wish.

            It is to determine what it actually says. IF it does not say what you want – try to change it.

            But for those on the left everything is an oppinion and fungible.

            Marriotti goes completely off the rails so early the rest is not worth reading.

            But the trivial response is – your “theory of law” would result in the conviction of the entire prior administration.

            It should be obvious that the law never intended to criminalize everyone.

            Whenever you interpret the law – think NOT ONLY of whether your interpretation will “get” the outcome you want – but how if it was applied the same it would effect other outcomes.

            Are you prepared to jail the entire prior administration to “get Trump” ?

            Marriotti is TOO BROAD and obviously so.

          2. I would sugest reading Basiat’s “that which is seen and that which is unseen” or ” the broken window”.

            Though they are usually directed at economic thought, they apply equally to law.

            Your thinking only considers first order effects. You do not bother to look past to the higher order effects.

            Lets accept your premise – Trump asked Session to unrecuse – hence obstruction of justice and witness tampering and sessions must recuse or resign.

            Trump has asked that Rosenstein recuse – therefore Rosenstien is a witness to trumps obstruction, Rosenstein can no longer prosecute and must recuse or resign.

            Trump has pressured Mueller to recuse or resign – obstruction, Mueller a witness, witness tampering,
            Mueller must recuse or resign.

            Your overly broad application of the law allows trump to place himself above the law, by serially violating the law.

            It should not take a genius to understand that is not the law.

            Your argument fails – and Marriotti’s fails much the same way.

            Do not call some analysis excellent that fails a trivial reductio ad absurdum

            Logic has rules. Marriotti fails them. Arguments with obvious logical flaws are not “excellent” they are crap.

          3. “Where did you go to law school, dhlii? Are you a prosecutor?”

            Where did you learn logic ? Do you know what a fallacy is ? Do you know what ad hominem is ?
            Do you know what an appeal to authority is ?

            For reference my wife graduated Cum Laude from UofP law school as an adult, and I was her study partner for 3 years. As well as helping her study for the bar.
            She has been an appelate expert in criminal law for almost two decades.
            And she consults me on constitutional law as I keep up with that more than she does.

            My personal profession is in computer software particularly embedded logic.

            My “expertise” is logic. It is something I am very good at, and you are quite obviously not.
            Nor BTW is Marriotti.

            1. My logic is sound. If Mueller or Rosenstein are required to testify, they should recuse themselves. So far, they haven’t been called to testify, so there is no need for recusal.

              You didn’t disprove Mariotti’s legal arguments. You simply said they were too broad. In fact, it is you who is vague because you didn’t offer any mistakes of fact or law he makes in the article.

              As someone who has prosecuted obstruction cases, his arguments carry more weight to the public than yours does.

              1. RMS81 – as one who follows the legal profession, I know that some people are prosecution minded and some are defense minded. With this new (relatively new) tactic of stacking charges so that someone agrees to plea bargain to the original charge. This is why conviction rates are so high. Not be because prosecutors are so good, but because people don’t have the money to fight them. Manafort has the money to fight Mueller. The Russians have the money to fight Mueller (can you believe they had only translated 1/4 of the documents) and Trump has the money to fight Mueller. And they all are. Look at the pansy-a$$ charges they are dumping on Manafort. Those deserved an early morning raid on his home? Really????

              2. Your logic is broken. They need not be CALLED to testify. They merely need to be witnesses – and they both clearly are. Mueller can not elide the requirement for Rosenstein to recuse by not “calling him” to testify. Based on Muellers claim of obstruction and his theory of the law – Rosenstein is a fact witness to the elements of that obstruction. BTW that also means Rosenstein has a conflict. I am hard pressed to think of an instance where you could possibly be called as a witness where you would not also be conflicted.

                  1. Paul & dhlii :I disagree. We do not know exactly what Mueller is investigating because he hasn’t released his report. If Rosenstein hasn’t been required to recuse himself, the most likely explanation is Mueller isn’t investigating anything Rosenstein has witnessed. There has only been media speculation about the investigation, but no official report has been given.

                    Sessions is required to recuse himself because he worked on the campaign and his oversight of the investigation into the campaign’s contacts with Russia is a clear conflict.

                    No conflicts have been established in regards to Mueller or Rosenstein.

                    This may change if either of them are called as witnesses but I think it is very unlikely.

                    1. You do not get to avoid the requirements of recusal by taking a detour arround some part of the evidence.

                      So long as Mueller is investigating Obstruction by Trump, and so long as he is claiming that the presidents interactions with Comey or his firing of comey could be obstruction – then by the very theory Mueller is using to assert obstruction – Mueller and Rosenstein are conflicted.

                      The problem is the thing I keep telling you – this obstruction claim rests on an overly broad interpretation fo the law.

                      If the scope of he law is a circle and the center is the narrowest possible interpretation, the broader you go the more area you take in. If you place what Trump actually did on the graph and expand the radius sufficiently to include Trumps actions inside the scope of the law – you have also included enormous amounts of other conduct.

                      Further you do not get to go back and say – the scope of the law is not a sphere – it is some ameoba like shape so that I can capture Trump’s conduct but avoid anything that Mueller and Rosenstein would be witnesses to.

                      You said I need caselaw – but the problem is yours. Quite simply If you claim firing Comey was obstruction – then Rosenstien is a witness. And if you claim Trump’s rants at Sessions are obstruction, then Rosenstein AND Mueller are witnesses.

                      Either drop the stupid overly broad claims or recuse.

                      I would further note you have a horible logic problem.
                      By defining obstruction so broadly, Trump can permantly prevent being investigated by ranting at whoever is the prosecutor forcing them to recuse.

                      Just to be clear – Rosenstein is a witness and must recuse, so long as you claim firing Comey was obstruction.

                      No prosecution is possible – if you claim that railing at DOJ is obstruction, as you can not get a prosecutor that would not also be a witness.

                      What a tangled web we weave when first we practice to deceive.

                    2. Mueller has NEVER claimed that the firing of Comey was being investigated, nor has he claimed the firing was a crime itself. It is merely press speculation.

                      The real obstruction, as I have been saying, is him pressuring Sessions to take control of the investigation when he has a clear legal conflict of interest.

                      Neither Mueller nor Rosenstein would be privy to such private conversations and couldn’t be considered witnesses.

                      If the Obama administration had asked Al Gore or another Clinton campaign worker to oversee the investigation into Clinton’s server, and berated him publicly for not agreeing to, the Republican Party would have impeached him for trying to put a Clinton crony in charge of a serious investigation. They would still be complaining about it 2 years later.

                      There is plenty of other questionable trump behavior Republicans are overlooking. What would have happened if Obama had imposed tariffs on allied countries like Canada and EU, invited the North Korean spy chief to the White House, and boasted about grabbing women’s private parts because he’s famous?

                    3. Just to be clear it is your view that Mueller is not charging obstruction for firing Comey – correct ?
                      I presume then YOU do not beleive firing Comey was obstruction ?

                      Am I correct then in stating that you accept that the president(or anyone else) can not obstruct justice by actions that he is otherwise legitimately permitted to do – such as act in accordance with his constitutional powers ?

                      You also then have a problem regarding finding obstruction with sessions and rosenstein and Mueller.

                      If you can not be charge with obstruction for firing someone – how can you be charge with obstruction for threatening to fire someone ?

                      With respect to pressuring Sessions to take control – are you saying that Trump(or anyone else) beleives that Sessions – who broadly recused himself when he did not have to, would himself obstruct justice if he unrecused himself ?

                      To be clear – you are not arguing the Trump’s pressuring Sessions to unrecuse is obstruction,
                      You are actually arguing that it is conspiracy to obstruct, and that requires Trump to KNOW that Sessions will obstruct.

                      And frankly it just gets worse from their – because if Sessions recuses and fires Mueller, or rains him in – how can you tell whether that is obstruction or excercising his constitutional responsibilities as AG ?

                      So now you have a MAYBE conspiracy to MAYBE obstruct, Or maybe a conspiracy to do justice.

                      You do know that people associated with the Clinton server investigation were directly or indirectly tied to the Clinton Campaign ? McCabe’s wife received money from the Clinton campaign. McCabe was advised by the FBI/DOJ ethics office to remove himself from the investigation and did not.

                      You can also check into the Ohr’s

                      Just to be clear – I think Sessions was right to recuse, and Rosenstein must too.
                      And Mueller must if he claims obstruction based on firing Comey or intimidation of Sessions, Rosenstein or himself.

                      But the real solution is such claims are overly broad and therefore Mueller can not make them and the problem goes away. But so does Obstruction.

                    4. “There is plenty of other questionable trump behavior Republicans are overlooking. What would have happened if Obama had imposed tariffs on allied countries like Canada and EU, ”

                      Obama did.

                      “invited the North Korean spy chief to the White House”

                      If Obama got NK to the negotiating table he would have earned that Nobel Peace prize.

                      “and boasted about grabbing women’s private parts because he’s famous?”
                      Did not vote for him because of that among other things.

                      Look you want to fight over policy issues – fine.
                      I think Trump’s protectionist positions on Trade are stupid and dangerous.
                      It looks like he might get better deals for the US by bullying other nations on trade – I do not have problems with the bullying, but real free trade is a win win. So much that lowering trade barriers unilaterally is the best move.

                      But that is a policy issue.

                      I also oppose Trump on immigration. But I oppose democrats too.
                      I am libertarian, I support relatively open borders and no welfare state.
                      But Trump’s position is close to sane than the left’s.

                      Further even with open borders – that does not mean not vetting the people we let in.

                      Finally, if we are not going to do open borders, and when they are bring honest democrats are not after open borders either, then we must make tough decisions – and Trump is right about that.

                      How many immigrants are you going to allow in each year ? 500K, 1M, 3M, 10M ?

                      There are 750M people in the world who would immigrate to the US with open borders.

                      Once you have picked a number – who are you letting in ?

                      Swedes ? Chinese ? Nigerians ? Hatiians ?

                      People with college degrees ? People without ? Poor people ? Rich People ?

                      Are you going to take the dreamers out of the quota ?

                      Trump has provided answers to these quesitons – and the left calls him a racist.

                      But the left will not answer the quesiton – because there is no way to answer it short of open borders and not appear racist. So the left is engaged in political cowardice and hypocracy on immigration.

                      Regardless, you want to debate policy – rather than “argh Trump!” ?

                      I think alot of us – including Trump would be very happy with that.

                    5. I would like to raise the immigration rate to be roughly equal to the death rate. The country is aging and we need more immigrants to help take care of the elderly and fill labor shortages in many industries like agriculture and sanitation.

                      My generation (Millenials) don’t like raising children as much as previous generations, so birthrates in most years have been falling since the late 90s.

                      Japan is a perfect example of what happens when immigration is low and birthrates don’t replenish the work force. In 30 years, 25% of Japan will be over 65 and there won’t be enough working-age people to staff many industries and fund their social security system.

                    6. I will congratulate you for having the courage to take a someone specific position.

                      Based on your parameters the number of immigrants would be 0.
                      The peak birth rate in the post WWII Baby boom was 3.5M
                      The birth rate today is 3.9M
                      There were 2.7M deaths per year today.

                      We have a very minor bulge working its way through with Baby boomers.
                      But the US will not hit ZPG until 2050 and will never go negative according to current projections,

                      US Peak population with ZERO immigration will hit 340M in 2050.
                      With CURRENT levels of immigration it will hit 436M in 2050.
                      That is based on US census 2008 projections. The birth/death data was 2016.

                    7. The immigration rate in the USA isn’t close to the death rate. There are roughly 4 immigrants per 1000 people, while the death rate is roughly 8 per 1000 annually.

                      If we doubled the immigration rate from its current level, we would ensure that our labor shortages could be addressed and also ensure the elderly have enough care. It would also ensure that Social Security and Medicare have enough funding to assist the elderly.

                      The birth rate alone is currently NOT high enough to maintain a youthful population. The average birth rate is 1.82 children per woman, while the rate needed to sustain population levels is about 2.1.

                      I do not distinguish between ethnicity or national origin when considering immigrants. Each person should be judged as an individual rather than as a member of a nationality.

                    8. I did not address the immigration rate. I addressed the difference between the Birth and death rate.

                      With ZERO immigration the US reaches ZPG – AND STAYS THERE at 2050.

                      With immigration the US population increases significantly for the forseable future.

                      I favor immigration.

                      But I oppose bad data and false facts.

                      Sustaining the population is NOT an argument for immigration.

                    9. Your argument regarding SS is just an admission that it is a ponzi scheme and worse an effort to use that ponzi approach to kick the can further down the road.

                      You are however correct SS and HI(medicare) fail if the population does not constantly grow (and if we do not have constant inflation)

                    10. Your statements regarding births are wrong – more children are born in the US each year than at any time in past US history. More are born each year than die.

                      Those rates will converge arround 2050 – but deaths will never exceed births according to current US census projections.

                      I support immigration – but I am not going to use false arguments to justify it.

                    11. According to the CDC, in 2016, the total fertility rate was 1818 births per 1000 women. The CDC says 2100 per 1000 women are needed to sustain the population levels.

                      https://www.cdc.gov/nchs/data/vsrr/report002.pdf

                      If we double our immigration rate from 4 per 1000 residents to 8 per 1000 residents, it would greatly add to the workforce and help keep services for the elderly financially viable.

                      More working-age people in proportion to the elderly is great for society.

                    12. You keep tossing out “fertility rates” – I do not care.

                      You can go directly to how many children were born.
                      How many people died.

                      That is the most direct measure of change in population.

                      Separately telling me repeatedly that we need to increase immigration to keep the SS/HI ponzi scheme afloat is NOT a good argument.

                      You are just admitting that SS/HI do not and can not work absent constantly increasing population.

                    13. “I do not distinguish between ethnicity or national origin when considering immigrants. Each person should be judged as an individual rather than as a member of a nationality.”

                      I do not care what your criteria are. I am asking you to commit to some criteria.

                      This is important for reasons way beyond just immigration.

                      Unless you are going for full open borders and unrestricted immigration, you must have SOME criteria.
                      You must make choices. You must DISCRIMINATE.

                      Anyone calling Trump racist who is not for completely open borders – is themselves a hypocrit.

                      And this goes far beyond immigration.

                      In life we make choices – we DISCRIMINATE.

                      I have actually had to hire people.
                      I have had to pick who gets the job from 100 applicants.

                      I have had to tell 99 people NO – many of whom were well qualified.
                      Some of whom MIGHT have been better qualified than whoever I hired.

                      It will ALWAYS be possible to look at the choices another person makes and claim that they are DISCRIMINATORY.

                    14. The 1990 immigration act signed by President Bush established immigration criteria that we can use. We can keep the same criteria and raise the quotas so the rate of immigrants per 1000 residents matches the rate of deaths.

                    15. This is not about specific laws.

                      This is about getting you to recognize and publicly express that CHOICES must be made. That DISCRIMINATION must occur.

                      I have no idea what the 1990 criteria were.

                      But there were CRITERIA. The law said NO! to many many people.

                      I am trying to get you to grasp that when Trump says – no to terrorists and muslims and hatians and nigerians, that is NOT different from whatever choices you would make.

                      There is no immigration policy aside from open boarders that does not discriminate.

                      When you choose whatever group(s) you choose I am going to point out that you are racist.
                      That you are discriminating against Chinese or Indians or …..

                      There is no criteria you can pick that does not subject you to claims of being racist, or cruel or ….

                    16. The US does not have the same problem as Japan.

                      Agriculture is going to automate heavily very shortly.

                      Just to be clear – the law of supply and demand states that if we have a supply of labor the demand for labor will change to match the available supply. Not only that it will change to match the skill set of that labor.

                      I noted that agriculture will automate soon. If Farmers has a ready supply of cheap labor, without fear of punishement from government They will not automate. Automation is driven by the cost of labor and regulatory uncertainty. The NLRB does not as of yet have jurisdiction over machines.
                      No owner gets accused of race, or sex discrimination for replacing a human with a machine.

                      But no matter how much we automate we will ALWAYS have jobs for humans – so long as those humans can be used productively at the wages they are paid.

                      There is a very small level of “natural” unemployment that is necescary to keep the system dynamic.
                      It used to be beleives that the lowest natural level was 4%.
                      Unemployment above the natural level is always the result of government machinations.
                      Minimum wages increase unemployment, regulations increase unemployment.

                      As I said before – so long as labor is available and there is any possible task that it can be put to that will produce more than it costs, that will occur. If it does not that means the cost of the labor is too high, or the productivity too low (they are really the same)

                    17. dhlii – much of agriculture is already automated. I live in the alfalfa capital of the US and have the pleasure of being surrounded by alfalfa fields. They get three crops a year from those fields and except for the irrigation, it is one guy in a tractor and changeable equipment behind.

                    18. And it is going to get even more automated over time.

                      Work is being done to automate just about everything that is or was picked by hand in the past.

                      Even your tractors, are not going to requite that human quite soon.

                      I do embedded systems work and ONE of the verticles I have worked in is vehilces and agricultural equipment.

                      But entirely separate I am also working on what I call “pot computers” computers to manage hydroponic growing in warehouses. Small scale this already exists – but ultimately it will become very large.

                      When you move growing into a building – you can eliminate pests, and pesticides and weeds and radically improve yeilds and …

                      Ultimately it does not matter whether you are growing MJ or tomatos.
                      You can grow year round anywhere in the world, you can grow anything you want – regardless of its natural requirements, and you can grow and harvest it without humans.

                    19. dhlii – have you ever combined wheat? They start in Mexico and move north to Canada. Fascinating. I drove a truck picking up the wheat on the fly from the combines. Dirty, itchy work while you matched the speed of the truck with the combine and then someone else swung out the auger from the combine to dump the wheat in your truck. Then on to the next combine. Then on to the granary. Then repeat.

                    20. No I have not.

                      I did not actually work at agriculture.

                      I am an embedded software developer – mostly private consulting.
                      Clients contact me and say – I need software for a tiny system for a medical centrifuge or the WiFi in a robot military sentry or can you fix our memory unreliability problem in a device going into a preditor,

                      For about 5 years I had about 50% of my clients in vehicles systems for things EXCEPT cars.
                      I worked on HMI’s for tractors, skid steers and wood chippers.
                      One of my projects was for a dynamometer that was for the axle of threshers.
                      These are used for about 2 weeks a year. But if an axle breaks they were fedexing new axles from WI to France at boucou bucks.
                      To avoid they they only drove the axles at 50% of rated capacity. That slowed down the harvest.
                      I developed software for a tiny computer that measured the torgue on the axle in real time and allowed running at 95% of capacity without having any failures.
                      The completed devices cost about $50 each but sold for about $1500.
                      But they saved 10’s of thousands.
                      I saw the axles being made in tested in WI, and participated in factory tests.
                      But someone else worked in the fields in France. Though I had to be available in EU time for their calls and to revise the software.

                    21. dhlii – a new combine, stripped down is about 250k, then you add air conditioning, stereo, cb, tv, etc. They are like a home away from home. If you get a chance you should watch when they do tandem combining of wheat. Sometimes, they will have as many as 20 combines working at the same time. Wheat is time-sensitive. When you have a couple of hundred thousand acres of wheat to get in it gets rushed. 🙂

                      BTW, your torque thingie sounds interesting.

                    22. Many agricultural products are time sensitive, even those that are not can have yeilds reduced by weather changes during harvest, so the harvest of many products is rushed.

                      One of the things I learned but could have guessed from the torque project, is that while manufacturers test to failure to identify weaknesses, fix those and repeat, you can not just do that infinitely,
                      otherwise you slowly transform your low end product into your high end.
                      And making one component better just moves the point of failure.

                      The real objective is to get everything to fail at almost the same level of stress.
                      And to have just enough headroom between peak load and failure to avoid failure.
                      Just making one part stronger does not really help unless it is radically weaker than the rest.

                      Conversely out vastly improved electronic abilities make it easier to run systems close to their limits and to detect impending failures before they occur and back down.

                      At the same time more complexity created by more electronics creates new points of failure.
                      Further electronic monitoring can sometimes replace older regulatory systems that are more complex and failure prone.

                      Further quite often the first generation of some very significant improvement actually makes things worse not better.

                    23. Where are you bringing your immigrants from ?

                      It matters. If you bring in highly educated indians, or Chinese – you raise the US standard of living more than if you bring in Hatians and mexicans.

                      The US will absorb whatever immigrants you bring, and our workforce will shift to make use of whatever skills they have.

                      Buit if you bring in a low skill workforce you will have a lower standard of living.

                    24. The standards are not different for Sessions that Rosenstein.

                      In fact Sessions conflicts are smaller and more remote.

                      Sessions uncountered Kislyak – I beleive twice during 2016. Both encounters were brief public and witnessed. Any allegations related to those are gone.
                      Sessions purportedly was contacted by Page about his trip to Russia. Sessions told him he was free to go but that he could not represent the campaign.

                      There is nothing else that even remotely implicates sessions at this time.
                      Page has testified repeatedly. Super human effort both by Mueller and the press has been made to find the tiniest kink in Page’s story. Nothing has surfaced, Page has not been charged. There is no reasonable conclusion at the moment EXCEPT that Page did nothing wrong.

                      Therefore ANY basis for Sessions recusal is GONE.
                      Identify anything else that Mueller is investigating that involves sessions.

                      I would not Sessions can recuse himself broadly – i.e. because he was part of the campaign.
                      But he is not REQUIRED to do so. He can and has chosen to remain recused, and personally I think that is wise. Despite the fact that I think Rosenstein has screwed up royally, I can sympathize that he is in a horribly difficult position. Frankly he should take the oportunity to recuse and run.

                      So long as Mueller is investigating “obstruction” based on Comey’s firing – Rosenstein must recuse.
                      Your claim that Mueller has not yet decided to use him as a witness is irrelevant. The question is did you witness something relevant – not will you be called as a witness. The answer is unequivocally yes.

                      So long as Mueller is investigating “obstruction” based on remarks about Sessions, Rosenstein or Mueller – then BOTH Mueller and Rosenstein must recuse.

                      The simplest solution is to follow the law – and not interpret it overbroadly. Trumps remarks about Sessions Rosenstein and Mueller are not obstruction.
                      Trump’s firing of Comey is not obstruction.

                      As that is the case neither Mueller nor Rosenstein must recuse.
                      Absent obstruction there does nto appear to be a basis to question Trump.
                      There seems to be nothing left to investigate, so Mueller should file his report and go away.

                    25. If Mueller and Rosenstein witnessed any elements of or particularly if they are the target of the obstruction,
                      Then they must recuse.

                      It is YOUR overbroad interpretation of obstruction that creates the conflict.

                      They do not have a conflict – because there is no obstruction.

                    26. It is not being “called” that is the conflict.

                      You can not fix a conflict by saying I will not call myself as a witness.

                  2. That is correct, but all that is necescary is that the person is a witness to an element of the alleged crime.
                    Not that they are a called witness.

              3. Overbroad IS disproving.

                A legal or constitutional interpretation that is over broad is unconstitutional. End of argument.

                There are excellent reasons for this. We do not want and should not have laws so broad they make criminals of large groups of people, or they make criminals of the innocent.

                The mistake is that it is OBVIOUSLY over broad.
                It is near certain their are many other mistakes, but I need not find the rest.
                Overbroad – and in this instance quite obviously so, is enough.

                Blatant appeal to authority.

                1). This issue is NOT mostly going to be decided by the public. But even if it were the public is free to decide as it pleases – you can HOPE they factor in the bonifides of those arguing, but they might just go with the argument from the person with the more pleasant voice.

                2). Courts are supposed to follow the law and constitution narrowly. There are actually rules for constitutional and statutory interpretation. Prosecuting something previously successfully is not in the list of rules for statutory or constitutional interpretation.

                Please do not make ludicrously fallacious arguments. I suggest looking up the various fallacies before posting.

                1. Prosecuting something successfully gives him the understanding of the relevant case law to charge and convict someone of obstruction. You are incorrect.

                  What case law can you find that shows his interpretation is overly broad? Reading the comments section of the article, no one has.

                  1. You do not seem to understand law at all.
                    The burden of proof is on the prosecutor – or it is supposed to be.

                    It was rare that we had these overly broad interpretations for most of US history. It is only the recent pollution of the law by the left that has resulted in efforts to get ridiculously creative with the law.

                    Preet Bahara had a whole raft of convictions in the 2nd district overturned a few years ago – for overly broad interpretations of the law.

                    Though I think Menendez should have been convicted, he was aquitted – partly because the court – based on SCOTUS precident would not allow alot of claims because they were overlybroad, and because the jury was instructed to construe the law narrowly and they did.

                    Just recently SCOTUS slapped down the Trump adminstration (though the case was started by Obama).
                    Because claiming burglary was “a crime of violence” was an overly broad interpretation of the law.

                    I do not doubt that Mueller can go judge shopping and find a court that will not be willing to immediatly tank his interpretation. But it will not survive the supreme court.

                    Regardless, there are something like 15 “obstruction of justice” statutes in US code. Most do not apply by any step of the imagination – they are very specific, they either are for specific instances such as the IRS or otherwise have specific requirements that do not apply.

                    Of the few statues that remain after you eliminate those specific to USDA or IRS,
                    the burden is on you to show that one of them actually applies.

                    Actual crimes are expressed in the US code. They have specific required elements – if any of those are not present that particular crime does not apply.
                    The burden is on YOU to propose a specific statute that has been violated.

                    The news leaks of the Presidents lawyers memo claim that the President’s counsel picked the wrong statute. That is highly unlikely. Mueller and Trump’s counsel have been in discussions for a year.
                    The memo was almost certainly drafted in response to either memo’s from Mueller or communications from Mueller. I would be shocked if when Mueller said he wanted to question Trump about possible obstruction, that Trump’s lawyers did not respond – and which obstruction law are you investigating ?

                    Regardless, if your interpretation of a statute catches a large number of people that we would ordinarily think of as innocent, then it is overly broad.

                    In early 2016 – before Comey wrote the first draft exhonerating Clinton Pres. Obama publicly said that Clinton’s handling of her email was careless but not a crime.

                    By any interpretation of obstruction statues that make Trump’s alleged remarks to Comey a crime, Obama’s remarks would ALSO be a crime. In fact Obama’s remarks are worse. Trump allegedly asked Comey to exercise prosecutorial discretion. Obama asserted the FBI should find clinton innocent.

                    You do not believe Obama;s remarks were obstruction – though they were unwise and neither do I.
                    Nor were Trump’s.

      3. “To take another example, the IRS answers to the president, but the president cannot order them to refund his taxes or to cancel an audit. ”
        Arguably he can. Though your example is more complex, because taxes are set by LAW, not IRS guidelines.

        There are essentially 3 layers.

        Law – the president can direct the IRS to act in violation of the law. The courts would have to settle whether the law constitutes an unconstitutional infringement on the presidents constitutional powers.
        That was one of the many issues in the immigration cases.

        Regulation – the president can direct the IRS to act in violation of regulations. All the above would apply to regulations – except that the president also has the authority to direct the IRS to rewrite the regulations.
        The New regulations would still have to conform to the law – or the President would have to get the law overturned in court. The process would likely take alot of time.

        Guidelines – the president can direct the IRS to act in violation of guidelines. There is no legal recourse o any kind if he does. BTW the president is not the only one who can overrule guidelines, any presidentially appointed and congressionally confirmed member of the executive can overrule guidelines.
        That is likely unwise and could result in their being fired. But it is not a crime. Even lower staff, can ignore guidelines without fear of criminal prosecution, but they would still be subject to dismisal. Prperly they can not direct someone else to ignore guidelines but that occur’s all the time – that is what Lehrner did in IRSGATE – and in fact she directed IRS staff to violate peoples 1st and 14th amendment rights.

        With each of the above Congress can intervene and impeach.

        “The IRS has to follow it’s rules in determining which taxes to audit. If such an order was indeed possible, Trump would have exercised that privilege months ago.”

        Aparently you know nothing about IRS audits. Or government in general. Following the “rules” is the exception not the norm.

        Trump’s primary threat is impeachment not prosecution.
        His secondary threat is that if his public support gets too low he will not have the power to act effectively.

        Contra the expectations of the Left, Trump is not going to be indicted – ever.
        Even these ludicrous Obstruction claims will die quickly when faced with actual courts.

        Nor is he going to be removed from office. But actual impeachment precedings or even overly extenisive discussions of them substantially weaken him as president.

        And that is the actual objective.

        1. Sessions is a witness in the investigation. There is at least a century of case law saying that witnesses in investigations cannot oversee the investigations.

          The whole time Trump was pressuring Sessions directly, indirectly and by social media, Trump knew Sessions was a Mueller witness and that therefore those actions were illegal. Mueller agrees, and is investigating them. We now see what that illegal pressure has wrought.

          The reason Obstruction statutes talk not just about threats but “influence” is that lawmakers know that this is how obstruction efforts work—Trump “influences” Sessions to take certain actions that will materially affect the quality of the criminal prosecution Trump faces.

          1. “Sessions is a witness in the investigation. There is at least a century of case law saying that witnesses in investigations cannot oversee the investigations.:”

            As is Rosenstein – so long as you are making an obstruction claim.
            As is Mueller depending on what obstruction claim you make.

          2. “The whole time Trump was pressuring Sessions directly, indirectly and by social media, Trump knew Sessions was a Mueller witness and that therefore those actions were illegal. Mueller agrees, and is investigating them. We now see what that illegal pressure has wrought.”

            Trump has also been pressuring Rosenstein and Mueller in much the same way.
            If Sessions must recuse based on your argument – so must Rosenstein and Mueller.

            You still do not get it. Overlybroad interpretations of the law just create a mess.
            They trap you in a spider web you can not escape.

          3. “The reason Obstruction statutes talk not just about threats but “influence” is that lawmakers know that this is how obstruction efforts work—Trump “influences” Sessions to take certain actions that will materially affect the quality of the criminal prosecution Trump faces.”

            Obstruction statutes.
            Each section has several lettered subsections – those usually define a specific crime,
            The subsections generally have numbered elements – these are the elements of the crime.
            Every element for a given subsection must be met.

            You can no pick and choose bits and peices from different subsections.

            Have fun.

            18 USC 1501 – assault on a process server – NA – no assault – that really means force, and no process server, To my knowledge Trump has not hit someone serving a warrant.
            1502 Resisting an extradition agent.
            1503 – Influencing or injuring officer or juror generally
            1504 – Influencing juror by writing
            1505 – Obstruction of proceedings before departments, agencies, and committees
            No proceeding, wrong kind of proceeding.

            § 1506 – Theft or alteration of record or process; false bail
            § 1507 – Picketing or parading
            § 1508 – Recording, listening to, or observing proceedings of grand or petit juries while deliberating or voting
            § 1509 – Obstruction of court orders
            § 1510 – Obstruction of criminal investigations
            (a) Bribery
            (b) Finacial institutions.
            (c) defines investigator.
            (d) Insurance related
            (e) disclosure of information violating other federal laws.

            § 1511 – Obstruction of State or local law enforcement
            § 1512 – Tampering with a witness, victim, or an informant
            This section is long and complicated by very few of the sections are even slight aplicable – Trump has not attempted to kill or assault anyone or prevent a witness from testifying,

            § 1513 – Retaliating against a witness, victim, or an informant
            Both 1512 and 1513 apply almost exclusively to witnesses, victims and informants not law enforcement.
            Those are covered in other sections.
            § 1514 – Civil action to restrain harassment of a victim or witness
            § 1514A – Civil action to protect against retaliation in fraud cases
            1514 – there are no protection orders that have been issued much less violated.

            § 1515 – Definitions for certain provisions; general provision
            You should read 1515 – because the definitions are important.
            But 1515 can not be violated, it just provides defintions for other sections.

            § 1516 – Obstruction of Federal audit
            No audit
            § 1517 – Obstructing examination of financial institution – NA
            § 1518 – Obstruction of criminal investigations of health care offenses – NA
            § 1519 – Destruction, alteration, or falsification of records in Federal investigations and bankruptcy – NA
            § 1520 – Destruction of corporate audit records – NA
            § 1521 – Retaliating against a Federal judge or Federal law enforcement officer by false claim or slander of title
            This requires filing Liens. NA.

            https://www.law.cornell.edu/uscode/text/18/part-I/chapter-73

      4. Ordering a subordinate to violate the rules of an investigation is an attempt to obstruct it.

        Just what standing do imaginary ‘rules of an investigation’ have? No intramural procedural convention is binding on the President, nor should it be.

        1. The rules of investigation are not “imaginary.” They are spelled out in DoJ rules and in case law. Federal case law is indeed binding on the president. There is at least a century of case law saying that prosecutors who are witnesses to crimes cannot oversee investigations into the crimes they will testify about.

          Tampering with witnesses is a crime and it is a form of obstruction. Trump pressured to Sessions to not recuse himself knowing he is a witness. He doesn’t want Sessions to follow the precedent established and wants him to oversee an investigation he has to testify about.

          https://lawandcrime.com/opinion/why-evidence-that-trump-bullied-sessions-could-fortify-muellers-obstruction-case/

          “An attempt to influence the investigation by demanding certain behavior from Sessions could absolutely constitute the kind of attempt the statute contemplates. There’s no requirement that Trump’s effort have succeeded. His mere trying would be enough.”

          1. The rules of investigation are not “imaginary.” They are spelled out in DoJ rules and in case law.

            The FBI procedures manual is not binding on the President.

            1. Please read this excellent legal analysis by Renato Mariotti, a federal prosecutor who has tried many obstruction of justice cases. He states that pressuring Sessions not to recuse himself despite DoJ rules and case law is an obstruction of justice because he was trying to manipulate the process to become more favorable to him.

              Since Sessions is a witness in the Mueller investigation, it is witness tampering to get him to violate the rules of witnesses. There is mountains of case law stating that witnesses in criminal investigations cannot oversee or be involved in DoJ investigations.

              https://www.politico.com/magazine/story/2018/01/26/mueller-trump-obstruction-of-justice-russia-216532

              1. And there is excellent legal analysis by other former US attorney’s SCOTUS Clerks, former Judges, …. that claims the opposite.

                More importantly there are no cases were this ridiculously broad interpretation has EVER been used.

                This is not the first time a President has acted to thwart a DOJ or SC prosecution,
                Pretty much every president since Nixon has done so.

                I would further note that DOJ rules are generally rules of ETHICS, not LAW.
                The govern the conduct of everyone in DOJ including Mueller – violate them and you get FIRED, not charged with a crime. And finally they are DOJ rules – they do not apply to the rest of government – such as the White House.

                The left is quite obviously grasping at straws to manufacture obstruction.

                The Obstruction claim against Nixon was NOT for firing special prosecutors. It was for arranging payoffs.
                A function OUTSIDE his powers as president.

                The Obstruction claim against Clinton was based on his use of AK State Troopers – not his aggressive efforts to thwart the IC.

                  1. I want to see Obama do a legal brief on anything.
                    With respect to the law – Harvard should get their degree back.

                    1. dhlii – he is doing everything they taught him. He is the perfect lawfare student. I am sure they will name a building after him.

              2. Sessions is not likely a witness – but Rosenstein almost certainly is.

                Further you do not appear to know what witness tampering is.

                Your argument would result in Sessions becoming completely independent of the president the moment he was a witness in anything. That would actually require him to RESIGN rather than RECUSE.

                When you make overly broad claims about the law, the result is contradictions and messes and new problems pop up all over the place.

                The law should ALWAYS be construed as narrowly as possible.
                If that results in problems – the law can be rewritten.

                But you can not fix the results and conflicts that arise from overly broad use of the law.

          2. DOJ rules are not laws and only apply to DOJ.

            Again you are trying to broadly interpret something factual.

            By your argument all Trump has to do to get rid of Mueller is to threaten to fire him.
            Mueller then becomes a witness and must resign.

            I keep telling you that whenever you go for overly broad interpretations of the law – you create a mess and massive contradictions.

            Witness tampering requires trying to get a witness to change testimony.

            It does not involve trying to get them to do their job.

            Please start to think critically about the actual application of your broad claims.

            If obstruction was what you claim it is – the entire Obama administration would be hauled away in irons.

            Obama “pressured” AG Lynch with respect to the Clinton investigation.

            Clinton shucked and jived every possible way during starrs investigation.

  4. This whole Mueller and company “whatever you want to call it,” but certainly not a fair and unbiased federal investigation, is one for the books.

    From the day Mueller was hired, illegal “leaks” biased against a sitting president or his staff abounded in the media. Coupled with those illegal leaks, has been a plethora of so-called legal opinions along the way from our good professor Jonathan Turley, legal scholars Alan Dershowitz, Lawrence Tribe, former US Attorney Andrew McCarthy, Chris Christie, and many others, some pro, some con against the latest unsubstantiated dribble leaked out of the Mueller camp. Talk about contaminating a jury pool! If charged, Trump couldn’t get a fair trial unless the jury came from planet Mars.

    Not only that, it’s interesting how the so-called legal scholars differ so much on each issue. One says a president can’t be indicted, another says he or she can. One says Trump had the right to fire Comey, others say it was blatant obstruction of justice. One says Trump can fire Mueller and shut down his investigation, others say if he fires Mueller, and/or Rosenstein, and/or Sessions it’s obstruction and an impeachable offense. Even members of Congress haven’t the first clue what the constitution says about executive powers, proven by Senators Lindsey Graham, Grassley, Coons and Tillis drafting legislation to prevent Trump from firing Mueller, which other Senators led by Mike Lee have said is unconstitutional.

    It all goes to prove what the comedian Lenny Bruce once said “In the halls of justice, the only justice is in the halls.”

    Throw “innocent until proven guilty” right out the window. It’s all media driven crap for ratings and big bucks.

    The hoot is how today liberals and libertarians have jumped behind a corrupt FBI under J. Edgar Comey and corrupt Spy chieftains John Brennan and James Clapper, where they blatantly and repeatedly violated the rights of American citizens for political purposes and continue to lie about it, even under oath.

    The Left hates Trump so much that they’ve allowed a corrupt DOJ, FBI and CIA to trample on the constitution unabated.

    In the meantime, we have our legal beagles out there everyday on TV, radio, internet and the written media opining away – hoping to glean a reputation along with some greenbacks along the way.

    That’s how low our American system of justice has fallen. Vladimir Putin is laughing his ass off.

    1. JR

      It sounds like you might agree that Trump knew that he would be in trouble – even before the election, and thus he figured that rewarding Sessions with the A.G. position would ensure that he’d be protected from any investigations into his family’s business relations with Russians and any “help” from Russia that was designed to benefit him in the 2016 election.

      Too clever by half.

      1. Hey Bill McWilliams, time to put down the crack pipe fella. Sounds like you’ve swallowed this whole “Russia collusion” hoax – hook, line and sinker. Time to start thinking for yourself Bill. Try doing your own research to find the truth. You’d be surprised what you’ve been duped into believing. Good luck.

      2. If that were true Trump would have nominated Guilliani as AG.
        He never would have appointed someone who could be forced to recuse.

    2. @JR June 4, 2018 at 7:24 AM
      “The hoot is how today liberals and libertarians have jumped behind a corrupt FBI under J. Edgar Comey and corrupt Spy chieftains John Brennan and James Clapper, where they blatantly and repeatedly violated the rights of American citizens for political purposes and continue to lie about it, even under oath.”

      What libertarians have defended the authoritarian behavior of Comey, Brennan, and Clapper?

      1. None that I know of.

        Even mere civil libertarians like Alan Derschowitz are holding their nose and defending Trump against the predations of the CIA/DOJ/FBI.

        You do not have to like Trump to be offended by the conduct of the state

  5. That Trump is a counterpuncher has been established and not the issue. The issue is why does he feel the need to counterpunch when no punches have been thrown. Mueller has yet to deliver the results of his investigation. Trump ranted and railed as part of what he was going to do to clean the swamp. This was one of the ingredients that got him to the White House. Yet he seems to be complaining the loudest when his ideas are put into practice.

    The independent investigation by Mueller has been openly and repeatedly criticized by Trump. One is lead to believe that Trump is either guilty of some serious stuff and is going bananas worrying about it being disclosed or his megalomaniacal self simply cannot take being under the magnifying glass, or both. Either way, Trump is the one making too much out of this. The constant feed from the White House has been only about what Trump can or can’t do if this or that happens. Nothing really has happened yet.

    I was in a line up once. I was lead to a room with a bunch of other guys who looked something like me. The guy who was complaining about getting roused from bed at two in the morning and other stuff, was the guilty one. This is so similar.

    1. Mueller and the Mueller investigation ARE part of the swamp and are an impediment to clearing the swamp.

      1. Your reply illustrates the problem. What is the swamp? To the left it is one thing and to the right another. In essence it is whatever one wishes it to be. This polarization, which inhibits one from an objective understanding, is the swamp. If anything is functioning to clean the swamp it is Mueller. If anything is a result of the swamp it is Trump. Trump is almost 100% hat with no cattle. He spends most of his time ranting and raving, tweeting and rallying trying to convince his followers of whatever is rolling around in his megalomaniacal head. The Presidency should be about getting things done, not whining and blaming on a continuous thread of paranoia.

        We hear what a genius Trump is, from Trump, unendingly. A real genius would be too busy running things to take the time.

      2. dhlii,
        I just finished reading the now 76 posts and I wanted to thank you for the analysis. Your continued reference to the law and how it should apply equally regardless of personality or party or position is extremely important. Great work!

        1. Thank you.

          The law should be applied NARROWLY and as written. That is the real argument.

          The equal application argument is primarily an emotional appeal to leftists, who are outside the reach of logic and reason.

          Because they are outside the reach of logic and reason, it is unfortunately a weak argument.
          Far too many leftist think it is perfectly OK for the law to be one thing for Trump and another for Obama/Clinton.

          The central thesis of post modernism is that the law and ones rights vary based on who you are.
          Rather than the gilded age claim that the rich are above the law, the left today asserts that those scoring highest in adversity points are above the law. A handicapped muslim black transgendered female is free to do whatever she pleases. An able christian straight white male is guilty just because of his status.

          Rational though is not necescary. Truth is determined by the intersectionality score of the speaker.

      3. Donald Trump is draining the swamp? Haha!

        Having a personal lawyer take secret payments from large corporations in order to buy influence with the White House is not draining the swamp.

        This is pay-to-play.

        The right LOATHES Michael Avenatti for him publishing records about Michael Cohen’s hidden payment plan. But such a disclosure is necessary when we have a president who has been the least transparent out of all in regards to his financial activities.

        1. “Having a personal lawyer take secret payments from large corporations in order to buy influence with the White House is not draining the swamp.

          This is pay-to-play.”

          That would be true if:

          Trump directed Cohen to do so.
          Those paying Cohen expected and received something of benefit.
          Trump benefitted.

          Exactly that did occur with Clinton.
          Thus far the only ones benefiting from the payments to Cohen are Cohen.
          If AT&T etc received some benefit – it was not from Trump

          Michael Avenatti is just an ambulance chaser. No one “loathes him” except possibly those he has ripped off. I strongly suspect we will hear less and less of him – he as plenty of problems of his own.
          He aquired Treasury information illegally. There will be prosecutions.
          He has a large number of people – who are not on the right pissed off for stealing from them.
          He owes far more money than Cohen collected.

          Michael Avenatti is not your white knight. He is your millstone.

          1. Obama was far more transparent than Trump is. He released tax returns going back decades.

            Cohen was a Trump organization employee when he arranged these payments so the inference can be drawn he was acting on Trump’s behalf when he set up these arrangements.

            The circumstantial evidence is Cohen was getting money to pay hush money on behalf of Trump in exchange for access to the administration and/or his company.

            This is why the US attorneys in NYC are investigating

            1. Obama was far more transparent than Trump is. He released tax returns going back decades.

              That’s nice. He also stonewalled congressional inquiries quite successfully.

              1. I do not give a rats ass about Trump or Obama’s tax returns.

                Obama’s ADMINISTRATION was the least transparent EVER.

                The obligation for transparencey is a GOVERNMENT obligation.
                You are not entitled to know about my life.
                Both of us are entitled to know what government is up to.

            2. Typical left wing not – unable to make the distinction between the individual and government.

              No one is entitled to know about your private life – so long as you do not harm others.

              Everyone is entitled to know almost everything about how we are governed.

              You have no right to either Trump or Obama’s tax return – though you should watch out for Lois Lehner.

              But when HRC sought to hide her actions as sec state from FOIA requests she broke the law (unfortunately not criminal law).

            3. “Cohen was a Trump organization employee when he arranged these payments”
              Not True and not relevant.
              Cohen is self employed. TFA and Trump personally were clients, not employers.

              “so the inference can be drawn he was acting on Trump’s behalf when he set up these arrangements.”
              Not true and not relevant.

              The money was paid to Cohen. That means Cohen was acting on Cohen’s behalf – or on the behalf of AT&T

              “The circumstantial evidence is Cohen was getting money to pay hush money on behalf of Trump in exchange for access to the administration and/or his company.”

              You are bizzarely conflating two unrelated things.

              “This is why the US attorneys in NYC are investigating”

              We have no idea why the US ADA SDNYC is investigating the alleged crime has been redacted.
              All we know is that it fits into a single sentence.

        2. Trump is not rquired to be transparent about his own finances. No one is, No president is and most are not.

          Obama ran the least transparent administration in US history.

        3. Avenatti is a ambulance chasing parvenue. Violates the RPC as often as he changes his socks.

    2. Accusations against Trump have been floated in the press since before he announced his campaign.

      I think that Trump’s railing is understandable as something other than the complaints of the guilty.

      Rouse me at 2am for a line up and I am going to be bitchy.

    3. “This is so similar.”

      pfffft. your personal story of being in a line up is more similar to the woman who shot her husband for beating the family cat. Maybe that was you but you escaped?

      “A woman told detectives Saturday she shot and killed her husband because he was beating the family cat, police say.”
      http://dfw.cbslocal.com/2018/06/02/woman-admits-killing-husband-beating-family-cat/

      Keep beating the President of the USA. When your party candidate is elected President, you can expect the opposition to treat him/her as well as the woman who shot her husband for beating the cat. Just saying LOL

  6. According to 738 poll, The Donald has a 41.6% approval rating.

    Love that 3 place accuracy…

    1. no trust an attorney with numbers.
      41.6% has a 1 place accuracy hence the 0.6

      stick to CNN, bruh. you’re not ready for prime time

      1. Sorry, but you are completely mistaken.

        For example, 40% plus or minus 5% is one decimal place accuracy.

        I fear that you need to study some elementary statistics.

        Finally, I am a retired scientist.

        So quit just Making Stuff Up.

        1. David Benson still owes me two citations, one from the Oxford English Dictionary. Dude, as a retired scientist, you didn’t know what the OED really was, had never seen it, and have still never been in it. Polling is more art than science right now because fewer people have landlines. And those that have landlines refuse to take polls. So, polls are skewed. Also, so pollster (political) weight their polls to get the result they want not the real result. When any poll comes out, what you want to see are the raw numbers. That will tell you how accurate the poll is likely to be.

          Sooooooo, what are the raw numbers on this poll?

            1. David Benson still owes me two citations, one from the Oxford English Dictionary. David, I am a humanist which gives me more range of knowledge. I do admit to being ignorant of Weart and gasoline engines, though. I intend to remain ignorant of both.

              You have a trip to the WSU library to prepare for. Better get your walking shoes on.

      1. David Benson still owes me two citations, one from the OED. David, one the day of the General Election Nate Silver gave Trump a 15% chance of winning the presidency. How accurate do you think Nate is now?

        BTW, did you get the number wrong because you are a bad scientist or a bad mathematician?

  7. I would strongly suggest putting away the law books and the dueling battle of constitutional interpretations.

    Nixon had to resign because there was evidence he arranged for payments to burglars in exchange for their silence. This was conduct that Nixon did secretly – because he was aware it was wrong, and by doing it secretly that guilt was self evident when it came to light. There was no possibility that even the strongest of his supporters were going to accept that.

    Mueller and the left have spent the time since Nov. 9, 2016 trying to figure out how to twist the law to make Trump’s open and in your face public actions into a crime.

    Nothing Trump is being accused of was done in secret. You are not going to persuade Trump’s supporters, and you are not going to persuade many of the rest of us that Trump had “Mens Rea”

    Most of us understand that Trump has not fired Mueller, Rosenstein, Sessions, solely because that would increase the odds of his being impeached.

    Frankly most of us understand Trump’s anger at Sessions. While Sessions is a man of integrity, at the same time – Trump is entitled to an AG who would properly oversee the DOJ – including what is increasingly evident was a pretty disgraceful investigation of his campaign.

    For those who are defending it – will you feel the same if Trump uses the CIA/FBI/DOJ to investigate democrats in 2020 on the same flimsy basis that Trump was investigated ?

    1. You are wrong in nearly every particular. Hopefully, Mr. Trump will be gone in 2020, and all your nonsense will be just that, nonsense.

      1. Which particulars am I wrong about ?

        I generally find that people who make sweeping non-specific statements do so – because identifying specifics would obviously fail.

        Nixon’s actions were outside the legitimate powers of the president.

        Lying under oath in a civil case is clearly not under the constitutional powers of the president.

        Bush was not investigated for pardoning an investigation our of existance.

        1. For starters, you say, “Nixon had to resign because there was evidence he arranged for payments to burglars in exchange for their silence.”
          That was the least of it. He had to resign because he had lost the battle for the tapes before SCOTUS. The tapes revealed Nixon had engaged in obstruction of justice among other things. The Senate Watergate Committee had been holding open televised hearings in which John Dean revealed Nixon’s obstruction of justice. (Gosh, why can’t we have hearings like that today?) The House Judiciary Committee drafted 3 articles of impeachment and sent them to the full House. Goldwater and a few others went to the White House and told Nixon he had to resign before he could be impeached. Nixon resigned.
          History may not repeat itself, but it should rhyme. We need GOP Senators who will have the sense and the guts of Goldwater to tell Trump to resign. Can they rise to the occasion? Then, we need Trump to actually resign for the good of the country. Can he think of America First, or is that a slogan he does not believe?

          1. Were you alive for this ? You are remarkably badly informed.

            The Tapes are where the evidence that he arranged to have the burglars paid came from.
            THAT was the root of the obstruction of justice charge.

            Very little of John Dean’s testimony implicated the president.
            What dean revealed was that Haldeman, Ehrichman and Mitchell and CREEP were running a political dirty tricks group that was spying on the DNC. Nixon was never implicated in that. He was only implicated in the coverup.

            Amazing how spying on your political opponents is OK if you are a democrat, but not if you are a republican.

            There are televised hearings today. No one is watching.

            The other two charge in the articles of Impeachment were attempting to use the FBI to go after political enemies and attempting to use the IRS to go after political enemies.

            BOTH of which OBAMA has done. Nixon merely attempted them.

            You really do not want to use watergate – because this corresponds almost point by point, and is WORSE.

            Goldwater told Nixon that he did not have the votes in the Senate to avoid removal.

            Unlike democrats – republicans actually take the lawlessness of their own seriously.

            Clinton lied under oath – that alone should have resulted in his removal.
            That is actually more serious than “obstruction”.

            1. yes the main difference here is that the target of the creepy spying op was Trump who won instead of the loser guy that Nixon spanked.

              here the winner of the legit election is the one being constantly harassed

              imagine how well america could be doing if Trump werent constantly bedeviled by this nonsense

          2. History has repeated itself – Obama actually succeeded at what Nixon tried.
            Quite literally – point by point. You could dust off the Nixon articles of impeachment and use them unedited.

            Further Trump is doing what those who voted for him wanted. Look arround you. Consumer confidence is the highest it has been ever. Wages are slowly starting to rise again. Employment – particularly minority employment is rising. The economy is doing better than it has in a decade. If the Atlanta Fed is to be trusted Growth in 2Q 2018 will be 4.8% – that has not been seen since Reagan. I think they are overly optomistic, but still we appear to have gotten over 2%. Average growth for Obama was 1.8%.

            That is european growth levels – not american. which would make sense – socialism such as that of Obama brings about pathetic growth.

            I beleive the average for Trump is currently about 2.7% – still not good yet, but an average we have not seen since Bush.

      2. He will be in office the full 4 years elected by the US and if he wants to run a second term, he will decimate your daughter if she runs for office, uses her bodily orifices like Stormy does and manipulates minorities like Hillary did

        Americans are fed up with you Lefties. Try Venezuela? they’re ripe for your ilk

        xoxo

  8. There is no defense necescary.

    While Derschowitz has focused on the assertion that the president can not obstruct justice by excercising his legitimate powers. That is true of ANYONE.

    When we decide that otherwise legal actions become illegal because of our guesses as to their motivations – we are lawless.

    We have unfortunately headed fairly far down this road already. We have far to much bad law.

    One need not find Mueller offensive to grasp that Mueller is answerable to none and that is wrong.
    The president is answerable to congress and the voters.

    It is crystal clear at the moment that Rosenstein is unfireable so long as the Mueller investigation continues, and Mueller is not merely unrestrained but by circumstance incentivized to the most protracted and overreaching investigation possible.

    Any claim of obstruction by Trump is an assertion that an innocent person must sit silent and not make use of whatever legitimate powers are available to them to bring to an end a false and lawless prosecution.

    If that is what we have become – we are damned.

    One need not like Trump or like the way that he has lashed out at Sessions to grasp that Trump’s anger is legitimate.

    I would further note that any claims against Trump must past muster with the Jury of the electorate.
    Those who voted for Trump must to a large extent accept that any claim made is legitimate.

    If they are not satisfied the backlash could be enormous.

      1. Can you atleast link to something that is an actual story rather than left wing nut propganda ?

        Are you continuing to say that acts that are legal become a crime because of YOUR guess as to their motivation ?

          1. Not on the right.

            Regardless, facts are facts. the law is the law, the constitution is the constitution,
            In the event that they favor one ideology over another – that would be because the other is wrong.

            Everyone is entitled to their own oppinions – but not their own facts.
            Sen. Daniel Patrick Moynihan.

            Further all opinions are not equal. Some are plausible most are not.

            Regardless, while I attacked your ideology,
            I asked you a question that had no inherent ideology.

            Your guesses as to someone else’s motivations do not make a legal act into a crime – even in the unlikely event you guess correctly.

        1. It’s not legal for the president to ask someone to violate the rules of his job. Trump’s attempt to get Sessions to violate DoJ recusal rules so he could have a loyalist refusing to investigate Russian interference is an attempt at obstruction.

          Just because the president oversees a department does not mean he can order employees of the department to violate its rules.

          If that were the case he could have ordered the IRS stop its audit of his taxes months ago.

          1. It’s not legal for the president to ask someone to violate the rules of his job.

            Trump: Jeff, I really would appreciate it if you would pretty please unrecuse yourself.
            Sessions: I’m sorry Mr. President, but I can’t do that.
            Trump:
            Why?
            Sessions: There are rules of ethics that I must follow.
            Trump: I don’t care; I order you to unrecuse yourself.
            Sessions: If that’s truly what you are demanding from me, then I will have to offer you my resignation.
            Trump: Well let’s not get hasty here Jeff. If you stay, I will want you to get rid of those animals that are hell-bent on destroying this country.
            Sessions: MS-13?
            Trump: Progressives.
            Sessions: I’ll work on MS-13 and in the process, I’m sure to out many progressives.
            Trump: Works for me.

      2. Holly the only wheels coming off, are the ones on the short bus you ride to “school” everyday

  9. Off topic.

    In TNYT today I learned that there are but 15 million millionaires, two thirds in the USA.

    1. David Benson still owes me two citations, one from the Oxford English Dictionary Library opens in less than 90 minutes at WSU. Better get your skates on. Speaking of skates, I learned who the inventor of the in-line skate was today. I will tell you about him and the rather sad story behind his skating career if I ever get my citations.

      1. No, the library does not open @ 1 am. Paul C Schulte appears to be entering his dotage.

        And no, I don’t owe him anything; there is no contract.

        1. David Benson still owes me two citations, one from the Oxford English Dictionary. You are right. I was going by what Google said, not the school website. You cannot get into the reference dept until 10 a.m. which is 4 hours and 15 minutes from now. Same deal goes though, you give me the citations, I will give you the interesting, however sad story of the inventor of inline skates.

          Arizona never changes time. We are at the same time you are now.

    2. The point about millionaires is to illustrate the great concentration of wealth and so power.

      1. Bzzt, wrong – wealth is not power.

        Power is the ability to use force. Government has power.
        The wealthy rent power, they do not own it.

          1. Renting is not buying.

            The power always remains vested in government.

            Lord acton said Power corrupts, not money.

              1. David Benson still owes me two citations, one from the Oxford English Dictionary. Would you like to give us some examples from the Gilded Age, to make your point, instead of just a vague reference, as is your usual technique? Read Weart.

              2. You do know that Acton lived into the Glided age.

                Regardless, what is your point ?

                The Gilded age was the most rapid rise in standard of living in US history.
                Over about 40 years the Population of the US doubled – much of that from immigration, and at the same time the standard of living increased many times over.

      2. David Benson owes me two citations, one from the Oxford English Dictionary. Wealth or the accumulation of wealth does not subsume the accumulation of power.

      3. The point about millionaires is to illustrate the great concentration of wealth and so power.

        The greatest source of potential power is with the people; wealthy or poor. The greatest realized concentration of power is within the federal government. Decentralize the power (10th amendment) and we put it back in the hands of the states and municipalities. Ultimately more will be returned to the people, right where it belongs.

        1. Again Wealth is not power.

          BTW the number of millionaires refutes the concentration of wealth argument.

          There are more rather than fewer people who are well off.

        2. Even in physics Power is the use of force.

          Except in self defence, the use of force is restricted to government. That is the social contract.

          ALL POWER resides with the govenrment.

          You are correct that all government power comes from the people – and through them to government via the social contract.

          But you continue to push this garbage that money creates power. It does not.
          It merely allows you to rent it.

          1. But you continue to push this garbage that money creates power.

            Re-read my comment. I had copied Benson’s comment (which was about wealth) and bolded the words I wanted to make a point about.

            The point is to illustrate the great concentration of power.

            Ultimately more will be returned to the people, right where it belongs.

        3. While I suport decentralization – more importantly to the largest extent possible ALL government must be limited in its ability to use power.

          I do not wish to transfer power from the federal government to the state.
          I want to destroy that power, and return freedom to the people.

  10. The President cannot be charged with obstruction for discharging his Constitutional duties.

      1. hollywood – he can be impeached and convicted for violating his Constitutional duties, but he cannot be criminally charged for it.

        1. It’s an open question whether he can be indicted for crimes while in office. Maybe he can be. Different legal experts disagree about this. In fact, there is a slight possiblity that he is the subject of a sealed indictment as we speak.There is no disagreement that he can be indicted after he leaves office.

          1. hollywood – if he is lucky, he will serve 8 years and be beyond the statute of limitations.

            1. That would be lucky indeed. I don’t think he’s that lucky. I think he’s going to get very unlucky between now and year’s end.

              1. hollywood – Mueller has Trump refusing to play ball with him, Manafort attacking him in two courts and the Russians making him look like an idiot. The OIG report is out in a couple of days and then the FISA OIG report comes out after that.

                1. I await your foolish attempt to rationalize the findings of the IG report. If you disagree, I assume this will be another “deep state” plot.
                  Manafort has repeatedly lost in the federal courts. Don’t count on any traction there.

                  1. The IG todate has been extremely hostile to the DOJ and FBI.

                    The “leaks” so far aew that the coming report is huge and far more damning than the prior ones.

                    But leaks are sometimes wrong. We shall see.

                  2. hollywood – Manafort is poisoning the jury pool and he is playing hardball with Mueller’s team. I do not think the OIG report will look favorably at the top people in the FBI and DOJ. They have been waiting so long, criminal referrals must have been made.

        2. Excellent response.

          I would argue here that Even if Trump was NOT the president that there is no obstruction here.

          As to impeachment – he can be impeached for sneezing in public. But he will not be.

          One of the reasons that the Mueller investigation is improper is specifically because this is a matter that must be taken up by congress – not DOJ/FBI or a Special Counsel.

          1. Wrong. Otherwise, how is it that there was a Watergate special prosecutor, an Iran-Contra independent counsel, a Clinton independent counsel?

            1. Different laws, different times.

              There is actually SCOTUS caselaw on this – both generally and specifically.

              A prior SC law was found constitutional – BECAUSE the SC could be fired and because the scope of their actions was well defined and narrow.

              I am honestly surprised that the Mueller authorization has not been successfully challenged previosly.

              Rosenstein gave Mueller a counter intelligence charge. That poses two very serious problems.

              The SC law does nto authorize an SC for a counter intelligence investigation – there is no need for one, there can be no conflict of interest in a counter intelligence investigation.

              Further you can not mix counter intelligence and criminal investigations. In the FBI they are completely separate divisions. There is a chinese wall between them and extremely careful handling of any exchange between them. There are very few constitutional protections in a counter intelligence investigation.

              Combining them introduces massive possibilities for civil rights violations.

            2. I would note that Bush pardoned a whole raft of people to kill an SC investigation that likely would have lead to Bush.

              The only thing that prevents Trump from ending this now by Pardoning everyone is the likelyhood he would be impeached.

              It is perfectly within his powers and there is clear precedent.

              The argument you and NYT is claiming is novel and flawed is not theory – it has already happened.

              If the president can not obstruct an investigation by pardoning everyone, he certainly can not be firing the FBI director.

              Bush’s pardon’s actually met the legal requirements for Obstruction – while Trump’s do not.
              Yet the SC did not go after Bush – because he could not. Because Bush was acting as the law permitted him.

              We do not make up special law just for Trump

                1. The recently leaked documents from the whitehouse thoroughly undermine even your stupid argument for obstruction. Immediately prior to Comey’s firing, Comey had testified in the house and the senate that Flynn was not (and probably could not) be prosecuted, and essentially that the whole russia/collusion investigation was wrapping up.
                  It is not just Comey’s testimony, but the fact that Trump and the whitehouse were AWARE of it, that destroy’s the collusion argument.

                  Even by your ludicrously stupid argument, you can not obstruct an investigation that is essentially over.

                  But this gets even worse. Yates and DOJ came to the WH just before the inauguration and informed them of the investigation of Flynn. Memo’s from McGahn indicate that the WH Transition – from Flynn was already aware of the issue and was trying to determine themselves what response was in order. Trump & Co had determined that they needed to know what had actually been said in the conversation with Kislyak, and asked Yates/DOJ for the transcript repeatedly – and were stonewalled.

                  Whether you like it or not this builds the case that DOJ/FBI had “gone rogue”.
                  We have DOJ/FBI refusing to share with the WH information. We have that at a time when they had repeatedly assured Trump that he was NOT under investigation, and where that information was necescary to the WH to make important decisions.

                  The leaked documents reveal that it is not Trump who was acting lawlessly, but Yates/DOJ/Comey.

                  That Comey was fired as soon as Trump thought that the Russia investigation was OVER.

                  Which based on what we know that FBI/DOJ knew – it should have been.
                  Comey likely knew he was getting fired from the moment Trump was elected.
                  His “pee tape” briefing was a blatant attempt to forestall that.
                  The Page/Papadoulis investigation was never going anywhere. The concocted investigation of Flynn was dying, Comey and his “Memos” were all an attempt to build a case to appoint a SC when he was fired and bring new life to a dead investigation.

                  You may not like this story – but it is the one based on facts.

                  Further until he orchestrated an SC for you, Comey was EVERYONE’s goat. His claim to higher loyalty is ludicrous. His own testimony and his lies under oath make it clear he has no integrity and never has.
                  St. Comey is a ludicrous hypocrit and a slimier than most washington insider.

                  What is increasingly evident is that Trump should have fired both Comey and Yates much earlier – right at the start of his presidency. Frankly he should have cleared the Obama appointees enmass from the executive immediately on appointment rather than waiting until the Senate confirmed his own appointments.

                  What the Obama administration did to the incoming Trump administration is absolutely dispicable.

                  No transition in US history has been so back stabbing, and conniving.
                  This is particularly disturbing as the Bush/Obama transition was one of the smoothest and most cooperative ever.

                  What is clear is that democrats are very sore losers pretty much as an entire party. I think that is inherent in the leftist ideology. And are prepared to use “whatever means are necescary” to accomplish their ends.

                  That from the election through and past the inauguration the effort and attention of the out going administration, as well as those people who were held over was to sabatoge with the ultimate goal of fabricating a basis for impeachment or resignation. And they were doing so based on an investigation that was more of a frame up than an actual investigation.

                2. The “unitary executive” is not made up law, it is actually the constitution as written AND the state of Supreme court constitutional law. The only open question is whether the court has adopted the “weak unitary executive” or the “strong unitary executive” and the distinction is entirely irrelevant to the issues we are discussing

                  What is really true – as is typical of the left, is that when the law and constitution are not as you wish, you make things up. That this permeates the left – into academia, and law schools.
                  There is no shortage of “constitutional scholars” from the left who on any issue are prepared to argue that the current state of constitutional law is something radically different from what it actually is.
                  The absence of ethics and morality on the left means that what they are arguing today can be the complete opposite of what they argue tomorow.

                  Whether you like it or not the entire presidency of Obama was conducted premised on the STRONG unitary executive theory.

                  We are increasing learning that the Obama WH – and even Obama himself were actively involved in the Clinton and Trump investigations. Strzok’s texts indicate the the WH was being updated on the Clinton investigation 3 times a week. The same texts indicate that Obama himself was at Meetings on the Trump investigation as early as March 2016.

                  So in Jan 2017 an executive – still mostly staffed by Obama apointees who were used to heavy white house involvement in everything suddenly quits cooperating with the WH on everything ?

                  That stinks to high heaven of political corruption.

      2. Sorry, the lawfare article is quite bad. And they make the wrong argument backwards.
        There are many obstruction statutes – nearly all of them OBVIOUSLY do not apply.

        Trump’s lawyer’s demonstrated that the one that most closely applies – still does not.
        And they are correct. I would further note that Lawfare assumes that both Trump’s lawyers and Mueller are stupid – and that Trump’s lawyers either do not know that some other law is better, or that they can decieve Mueller – who has repeatedly been willing to follow expansive readings of the law is going to be duped.

        Sorry, Trump’s lawyer cite the correct law, though equally important many of the alternative choices have the same flaw.

        Further – Comey was conducting a counter intelligence investigation and Rosenstein authorized Mueller to conduct a counter intelligence investigation – not a criminal one. While Mueller is authorized to persue any crimes he encounters along the way.

        The DOJ/FBI have been playing games using a counterintelligence investigation as a means of circumventing the constraints on criminal investigations – well that works both ways.

        A counter intelligence investigation does not provide the prequesites for obstruction of justice.
        Obstruction must be of a criminal investigation.

          1. As I noted before – the NYT article goes off the rails in the first paragraph.

            There are something like 15 “obstruction” statutues.
            There are really only 2 or 3 that could possibly apply by anything but the most broad application of the law.
            The one Trump’s lawyers cited is the most aplicable.

            While the “proceding” requirement has sometimes been expanded to “potential” proceding.

            That still requires a credible allegation of a specific crime. That did not exist at the time.

            To obstruct, you must have an actual crime that you are obstructing the investigation of.

            You keep ducking these enormous problems.

            And you keep ducking the fact that your expansive interpretations of the law are going to have consequences that you are not going to like.

            As an example this claim of obstruction would also make Obama’s public remarks that Hillary was careless but committed no crime – while an investigation was ongoing into obstruction.

            You can not have the law one way for Trump and another for Obama.

          2. Linking to the same fallacious NYT article 100 times does not make it any more credible than the first.

    1. This need not be framed as unique to the president.

      No one should be able to be charged with any crime for acting as they are otherwise legitimately empowered to do.

      Further – though our law has unfortunately abandoned this principle, nor one should ever be charged with a crime as a result of their response to an unfounded investigation.

      Many of us are disturbed at the prosecution of Flynn and Papadoulis.
      While we may not endorse lying to the FBI, it is deeply troubling to see prosecutions for inconsequenctial misstatements about acts that were proper.

      We should not be making criminals of people by pressuring the innocent until they make a mistake we can prosecute.

      Worse still it is increasingly evident the entire investigation was politically rooted.

      There does not even appear to be a pretense that the early investigation was of Russian interference.
      The investigation from its start was of the Trump Campaign.
      An investigation of an opposing political campaign should have to meet the highest standards to be justified, instead this one does not appear to meet the lowest standards.

      1. Trump, so far as we know, has not been charged. Remember, he is a subject, not a target? Now, if he is innocent, he should have no problem meeting with Mueller and testifying. Just lay out the facts supporting his innocence. If he will not do so, I think we can assume he knows he and/or his associates have broken numerous laws. Yes, some have pled to lies, but they got deals (surely, Mr. Dealmaker can understand this).
        This is not an investigation of “an opposing political campaign” (here your bias is exposed), it is an investigation of a campaign that has apparently conspired to defraud the voting public with respect to the 2016 election. Again, if he is fault free, no problem. Just testify.

        1. Actually the fact that Kushner got his permanent security clearance strongly suggests that Mueller really has nothing.

          Contra the Press Kushner could have continued with a Temporary TSC for years – I had one for two years before a permanent one. Further the president may authorize access to or declassify anything.

          But a permenent approval requires the FBI to determine that there are no clouds over Kushner’s head.
          It is near certain they queried Mueller,

          1. No, I believe the POTUS can allow Kushner to get a permanent clearance. That’s probably what occurred.

            1. POTUS can – sort of. But that is NOT what occured. There has only been one change in WH clearane procedures since Obama, and that is that FBI delivers their reports to Kelley who forwards them to the WH clearance staff. This was done because the FBI was approving clearances and the “carreer” WH staff was sitting on them.

              Kushner was thoroughly vetted by the FBI. The FBI would not approve a permanent clearance if Kushner was a subject or target of a pending investigation. They would have insistend on confirmation from Mueller that Trump is neither.

        2. If Trump is innocent – if Mueller does not have sufficient basis for questioning that, then he has no basis to question Trump.

          Mueller’s conduct todate makes absolutely clear why no one in their right mind cooperates with Mueller.

          Mueller has no pleas or convictions for any crime except minor errors in answering investigators questions. Given that history – no one in their right mind talks to Mueller if they can avoid it.

          Innocence is no protection from a prosecutor that is looking to manufacture reasons to charge you.

          1. You don’t understand how litigation works. You don’t understand what you want to remain ignorant about. Just bury your head in the sand.

            1. I actually do understand how litigation works.

              But we are not debating litigation.
              We are debating the law – as well as the 4th and 5th amendment.

              With respect to Obstruction Mueller has a legal theory – a bad one, he does not have anything else.
              A legal act does not become a crime – because you do not like it.

              I am not hiding from anything.

              All the facts all the evidence are out in the open.
              You – and the rest of the “obstruction” crowd is not only pushing a overreaching legal theory – but one whose implications you have clearly not thought out.

              You are so blinded by Trump hatred you do not grasp the horrible results well beyond Trump of this garbage theory.

              As some have noted – Comey had reasured Trump that he was NOT a subject at the time he was fired – so Trump could not have been “obstructing” an investigation into himself.

              That means your theory means the president is obstructing justice ANYTIME he fires and FBI director – because there are myriads of investigations going on that the director has some role in.

              Whenever you come up with a cockamemy legal theory warping the law to support your whim, you will always get an avalanche of ludcrous consequences as that same theory is applied to other circumstances.

              1. dhlii – could I add that whatever it was came under counter-intelligence and therefore there is no way he could have obstructed an investigation. Supposedly, Comey was not in charge of counter-intelligence, so the operation went on. Actually, Mueller piggy-backed on the counter-intelligence team.

                1. There are lots of things that are emerging slowly.
                  Unfortunately the left is successfully deflecting from the gravity of these revelations.

                  Your ordinary NYT reader does not care if Obama formed his own plumbers unit and burglaries the RNC,
                  there is absolutely no bad act that Obama could do so long as in their minds it targeted the evil Trump.

                  I am an opponent of the Patriot Act, and mass surveilance – once upon a time most of the left was also.
                  What we have here is an egregious abuse of our national security aparatus for political purposes, things Nixon dreamed of but could not do.
                  And we have the left defending it.

        3. Given what has occured with Van Der Zwaan, Papadoulis and Flynn – would you meet with Mueller if you had any choice ?

          No reasonable person would. By prosecuting people for process crimes – specifically for small mistatements about legal acts Mueller has created an environment where no one sane will “cooperate” with him.

          I can not stop you from making assumptions – though you have already clearly made those assumptions. So you are actually irrelevant.

          But I think you will find that those people who are not ferverant Trump haters grasp that no one is wise to sit down with Mueller if they have any choice.

        4. McCarthy among others have addresses the “deals”.

          Mueller has already ceded that he is subject to DOJ rules.

          And DOJ rules require any plea to be to the most serious provable crime.
          Mueller is not free to plead to the least possible offense. There are actually very important reasons for this rule.
          While a federal plea deal usually tosses the typical oversharge crimes that prosecutors always file,
          It otherwise is to the highest not the lowest proveable crime.
          The gain from a plea deal is primaraly a sentencing recomendation – and most plea deals are conditioned on light sentences.

          Among the many reasons for this is that if a the person pleading fails to cooperate it is usually impossible to refile greater charges. The best the prosecutor can usually do is demand the maximum sentence.

          Remember a plea requires the defendant to cooperate and the moment they start cooperating they are subject to double jephardy and 5th amendment issues is the deal falls through.

          Either Mueller is an incompetent lawer or the pleas he accepted were for the highest crimes he beleived he could prosecute.

        5. I would also note that pleading to an offense is NOT the same as confessing guilt to charges that are dropped. The most you are allowed to conclude is that the defendant is guilty of the crime they plead to.

          Further there are two other factors typical to a plea deal.

          First the prosecutor wants the plea agreement to put onto the record the conspiracy the prosecutor intends to proscute against co-conspirators.

          Next a prosecutor is extremely unwise to get a defendant to plead to lying – because doing so means they are useless as a witness.

        6. You have actual evidence that the Trump campaign committed an election related crime ?

          Mueller has not even alleged such a thing. There is no indictment of such a thing, there is no plea deal on an election crime. There is no evidence of one.

          Even the things we thought MIGHT lead somewhere have fizzled.

          Neither Page nor Papadoulis had any contact with any russian tied to the Kremlin.
          Papadoulis does nto even appear to have had contact with “real” russians.

  11. There was no crime. At best there is counterintelligence for which no special prosecutor may be appointed.. As Sessions’ recusal was improper and egregiously erroneous, Mueller’s appointment is fraudulent and illegitimate. In a case where no crime exists or is probable, there can be no obstruction. As Mueller, wielding “unfettered power,” concludes his malicious prosecution with no “Russian collusion,” Mueller discovers he has absolutely no authority to set or modify DOJ policy and indict a sitting President. In summary, Mueller is one great big ——- joke and the joke will be turned on the Obama DOJ/FBI/CIA/NSC “deep state” conspiracy engaged in its coup d’etat in America, the most prodigious scandal in American political history.

    “May you live in interesting times.”

    1. Calling the illuminati! You cray cray. It’s an open legal issue whether or not Trump can be indicted while in office. But there are tactics to consider regardless. So he may escape indictment while still POTUS.
      But Trump may well be indicted after he leaves the presidency unless his counsel negotiates some sort of face-saving exit that immunizes him. Or Pence pardons him (if he is being smart, Pence won’t do it). Of course, that does not save him from state crimes. And if the Dems take over the House–which may or may not happen–they will get his tax returns and he will be exposed for: having lots of foreign loans with probable money laundering and tax evasion; having lots of quid pro quo receipts; having far less wealth than he has claimed. Then, the House of Trump will collapse. He will be toxic. Not even the Russians will lend money to him then. Melania will leave him.

      1. Here’s your “open legal issue,” brainiac.

        Obergruppenfuhrer Mueller, exercising unconstitutional “unfettered power,” shall not set or modify DOJ policy.

        Obergruppenfuhrer Mueller, exercising unconstitutional “unfettered power,” shall not indict a sitting President.

        Attorney General Sessions may set and/or modify DOJ policy and may indict a sitting President.
        _______________________________

        A Sitting President’s Amenability to Indictment and Criminal Prosecution

        The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.

        October 16, 2000

        MEMORANDUM FOR THE ATTORNEY GENERAL

        III.

        In 1973, the Department of Justice concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers. No court has addressed this question directly, but the judicial precedents that bear on the continuing validity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached. Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

    2. Sessions recusal was actually proper. But Sessions should have informed Trump that was possible prior to his appointment.

        1. Sessions is the worst possible person Trump could have picked for AG.
          He is opposed to much of what Trump campaigned on.

          But for the myriads of policy matters that Sessions is totally wrong about, he is still a man of high integrity.

      1. We should debate facts not fantasies.
        _________________________________

        Attorney General Sessions’ Recusal Was Unnecessary
        By Andrew C. McCarthy

        The regulation he cited applies to a different type of investigation.

        I have argued that Attorney General Jeff Sessions’s recusal from the so-called Russia investigation was a mistake. The attorney general’s testimony before the Senate Intelligence Committee on Tuesday afternoon bolstered this conclusion.

        Sessions says that he recused himself, on the advice of career ethics experts at the Justice Department, because he thought this was required by the federal regulation controlling “Disqualification arising from personal or political relationship” (28 CFR Sec. 45.2). But judging from the public testimony that former FBI director James Comey has given about the investigation into Russia’s election-meddling, the regulation did not mandate recusal.

        Section 45.2 states that an official is disqualified from “a criminal investigation or prosecution” if he has a personal or political relationship with a “subject of the investigation or prosecution,” or with a person or organization whose interests would be affected by the outcome “of the investigation or prosecution.” (Emphasis added.)

        The probe of Russia’s interference in the 2016 presidential campaign is not a criminal investigation or prosecution. Moreover, when the reg speaks of the “subject of the investigation or prosecution,” it is using “subject” as a criminal-law term of art. A “subject” is a person or entity whose actions are being examined by a grand jury with an eye toward a possible indictment. There are no “subjects” in that sense in a counterintelligence investigation because the objective is not to build a criminal case and there is no grand jury.

        Just last week, in his written and oral testimony, former FBI director James Comey reiterated that the Russia probe is a counterintelligence investigation. As Comey elaborated, a counterintelligence investigation is an effort “to understand the technical and human methods that hostile foreign powers are using to influence the United States or to steal our secrets,” in order to “disrupt” those activities. Again, the point is to gather intelligence about a foreign power, not investigate with an eye toward a prosecution of criminal suspects.

        This is consistent with the testimony then-director Comey provided to the House Intelligence Committee on March 20:

        I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.

        Comey added, “As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.” This is true, but it is more incidental than Comey suggests. All it means is that if, in the course of conducting a counterintelligence investigation, FBI agents discover that a crime has been committed, they are not required to ignore the crime just because it is not what they were looking for in the first place.

        The probe of Russia’s interference in the 2016 presidential campaign is not a criminal investigation or prosecution.

    1. It would be helpful if you had a credible source. But you killed your argument in three of the first four words.

      1. Right, my source is Harry Litman, a former US Attorney and Deputy Assistant Attorney General. And you? You’re nobody.

    2. Nope – not well reasoned.

      Trump’s lawyers are not arguing he is king. Nor are they arguing as Nixon did that anything the president does is legal.

      The argument is that the president may not violate the law by acting as he is otherwise legally empowered to do. That argument BTW is not even specific to the president.

      It is the converse argument that is extremely stupid.

      We saw this stupidity in the claims that Trump’s Immigration EO was unconstitutional because … Trump.

      The law must be the same for all. The powers of each president are exactly the same.
      An act that Obama can do – Trump can also. It is illegitimate to argue that some act is improper or unconstitutional because …. Trump.

      The entire left argument – and this ludicrously stupid obstruction claim is an argument that President Trump alone is unable to do something his predecessors did.

      It is also an argument that any FBI director (deputy AG or SC) can make themselves unfireable simply by starting an investigation of the president.

      It further means that any outgoing president can completely hobble the following administration by opening an investigation into the incoming president on its way out the door.

      The president can direct the DOJ and FBI as he pleases. That does not make him above the law – he remains answerable to congress.

        1. I started the times article and it went off the rails so fast it was ridiculus

          While there are aspects of this that are unique the to president, The Obstruction claim does not survive PERIOD.

          You and others – keep claiming that Mueller will be able to get Trump by proving motive when he interviews him, or because Trump may have lied about his reasons for firing Comey.

          All that is irrelevant. A legal act does not become illegal because of your guesses as to the actor’s motives. Not if the actor is president – and not if he is janitor.

          Robbing a bank is a crime – regardless of why you did it. Motivation MIGHT be a mitigating or agrevating factor, but that is all.

          Any “legal scholar” that is trying to make a claim that an otherwise legal act can constitute obstruction is already in the weeds.

          I wish that Derschowitz would stop framing his argument in terms of the president – it makes it look like there is something special with respect to the president. There is not.

          Further all this was done publicly, in the open. It is very hard to persuade most people that something that is not obviously a crime that was done in the open is nefarious.

          I have made several other arguments – among them that only in the spin of leftist loons is any of this an assertion that the president is above the law.
          In fact it is the opposite – it is an assertion that the law does nto UNIQUELY apply to Trump – which is what you are doing.

          Further your (and NYT’s) legal theory has the very serious flaw that any administration could hobble its successor just be starting an investigation of them in their last days.
          And any FBI director or AG would have instant job security by starting an investigation of the president.

          This is also why the separate investigation into the Trump investigations origens is so important.

          Absent a proper basis to start the investigation it is both lawless and corrupt and probably criminal.

          Most of us do not accept the Steele Dossier allegations, the Papadoulis story or the Page story as sufficient basis, but things have gotten worse with the revelation that the investigation PREDATES those allegations. Now we are left only with some nebulous claim about GHCQ russian chatter intercepts, that are little more than rumor and are not evidenced in proper channels.

          Eventually we are going to get to the bottom of this, and the further into the past this starts the more likely is was politically corrupt and not founded on evidence. Strzok’s texts place the first “sensitive matters” group meeting in Mid March – and from AG Lynch we know that “matter” is Obama Speak for investigation.

          There is no known basis for an investigation starting in March.

          But it gets worse – there are some stories in the press that claim this started in Late 2015

  12. “What is most striking, however, is the Trump camp’s response to the story and what it shows about the most viable defense to any case on alleged obstruction against Donald Trump: a type of justified self-defense.”

    “It is a defense that could work. Where some see the president acting to obstruct or derail the investigation, others see the Justice Department as acting to obstruct or derail the president. Moreover, even if the president is wrong about his deep-state conspiracy theories, he can claim that his motivation was not just clear but expressly stated.”

    This is desparate, crazy stuff. Trey Gowdy and Adam Schiff have detailed that the FBI/DoJ have done their jobs properly.

    You ignore Trump’s statements to Lester Holt and the Russians.
    You ignore Trumps’ history of repeated documented lies.
    How will Trump establish his “motivation”? I submit that he would have to testify to this alleged mental state. This opens him up to a fatal cross-examination.
    Time to abandon your angels dancing on pinheads rationales, Professor. Face the facts. Your POTUS is guilty beyond a reasonable doubt.

    1. So when do we get to see the list of these repeated documented lies? 500 days and not one of you have ever offered such proofs or evidence. By the way Remember Moore in Alabama? To this date not one law enforcement officer at any level, not one District or State Attorney, not one Judge at any level has ever accepted the allegations and thus converted them to ‘charges.’

      Sooner or later you will learn that saying is not the same as doing and repeating is not the same as facts.

      1. Wow! You are confused. Most of Moore’s crimes would be outside Alabama’s statute of limitations. However, Moore is being sued by three women and his motion to diusmiss their suit was denied. http://whnt.com/2018/03/28/judge-rejects-roy-moores-request-to-dismiss-defamation-lawsuit-against-him/
        3,001 lies and counting. https://www.washingtonpost.com/news/fact-checker/wp/2018/05/01/president-trump-has-made-3001-false-or-misleading-claims-so-far/?utm_term=.94db45c6d4b8
        Sooner or later you will learn that saying is not the same as doing and repeating lies is not the same as facts.

        1. just to be clear – some of the acts that are alleged against Moore are likely still prosecutable.

          Some of the allegations against Moore are not crimes – or were not at the time.

          But they are revolting.

    2. Before we discuss “defenses” why aren’t we addressing the fact that there is no credible claim of obstruction.

    3. Was Trump’s claim that he was spied on a lie ?
      Was Trump’s claim that he was wiretapped a lie ?

      Are we prosecuting Obama for “If you like your doctor you can keep them ” ?

      You are arguing that any statement of Trumps that you disagree with is both a lie and evidence of a crime.

      How do you establish Trump’s motivation ? Simple – absent an act that is a crime regardless of motive, you have no justice related basis to contemplate Trump’s mental state.

      Trump is guilty of what ? Being angry because the Obama administration illegally boobytrapped his ?
      Angry because James Comey attempted to setup up the president (repeatedly) ?

      There is no crime, and without a crime there can not be obstruction.

      Almost the entire country was at one time or another clamoring for Comey’s firing.

      Unless you beleive he actions regarding Clinton were pure and proper from begining to end, you can not subsequently pretend that he found jesus and behaved properly regarding Trump.

      You are littlerly arguing that because Comey started and continued an improper investigation, he can not be fired. When the real question is how did he survive inauguration day.

    4. Before you get to question Trump regarding his “motivations” you need an act that is a crime regardless of motivation.

      Can you name something that is criminal or not depending on your motivation ?

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