Below is my column in The Hill newspaper on the array of issues that now appear to be on hold pending the outcome of the election. This weekend former Vice President Joe Biden went so far as to say that voters do not “deserve” to know his position on packing the Court, reaffirming that voters must wait until after they elect him for an answer. It has a familiar ring for those who watched the movie The Truman Show.
Here is the column:
Joe Biden was asked again this week whether he would pack the Supreme Court if elected president. Rather than answer, Biden flashed a signature smile of the character from the “Truman Show” and offered his version of the classic line from the 1998 movie, “Good morning, and in case I do not see ya, good afternoon, good evening, and goodnight.”
From court packing to the Russia investigation to the Michael Flynn case, Washington is back to Seahaven Island where “you cannot get any further away before you start coming back.” In the movie, Truman Burbank was the only person in the dark. In this remake, the viewers are the voters in the dark, and only the main characters know the truth.
Though he once denounced court packing, as did the late Justice Ruth Bader Ginsburg, Biden has refused to answer whether he would support the plan raised by Democrats, including his running mate Senator Kamala Harris. This week, Biden testily responded to reporters, “You will know my opinion on court packing when the election is over.”
That is a truly alarming position for a candidate to take. Court packing is widely viewed as threatening to destroy a foundational institution in our constitutional system. Yet Biden refuses to say whether he would take a hatchet to the Supreme Court of the last two centuries. But the future of the judicial branch is just one issue left on layaway.
As news emerged that United States Attorney John Durham uncovered some serious and possibly criminal conduct in the Russia investigation, Democrats demanded that he not release his report before the election. Indeed, the federal rules tell prosecutors to avoid timing “investigative steps or criminal charges for the purpose of affecting an election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.” However, major cases often do affect elections, and they are not sealed in amber until the votes are counted.
The investigation by Durham is focused on conduct in the election four years ago. His subjects of scrutiny are not candidates on this ballot but rather federal officials involved in the investigation of potential collusion between Russia and the Donald Trump campaign in 2016. This proved to be unfounded. Ultimately, there was no evidence of collusion, let alone anyone who committed crimes related to collusion. Indeed, disclosed evidence shows the FBI was told early on that the allegations were not only dubious but possibly disinformation from Russia.
In recent weeks, we learned that the primary source used by Christopher Steele in his now infamous dossier was believed to be an agent of Russia. Recent declassified material also showed that in 2016, then CIA director John Brennan had briefed President Obama on an alleged plan by Hillary Clinton to tie then candidate Trump to Russia as “a means of distracting the public from her use of a private email server.” The handwritten notes from Brennen would seem extremely serious on their face. Indeed, the allegation was sufficiently serious to brief the president.
It reflected intelligence reports given to the FBI and then director James Comey. When asked last week about the report, Comey simply said it did not “ring a bell.” What rings his bell is precisely what the investigation by Durham could reveal. All of this recent evidence happens to tie in to other earlier facts, from the Clinton campaign lying about funding the dossier to Steele misrepresenting his sources and his conclusions.
There are arguments for delaying the release of the report by Durham this close to the election. But there is a lack of assurances that we would ever know the findings after the election. If Democrats control both chambers of Congress, it is unlikely they will have hearings on the report. Democrats on the intelligence committees have said they want the investigations into 2016 to end so we can all “look ahead rather than back.” If Biden becomes the next president, the Justice Department could shut down or curtail the investigation, or even classify its final report as privileged.
Democrats are not the only Washington officials leaving the future open. In the case of Michael Flynn, Judge Emmet Sullivan appears to be waiting out on the election before issuing a final ruling. Sullivan was supposed to sentence the former national security adviser two years ago. Instead, he held a hearing where he made disturbing statements about the case and then threatened to jail Flynn, ignoring the Justice Department probation recommendation. An appellate panel decided this summer that enough was enough, and it ordered Sullivan to dismiss the charge.
But the full appeals court decided Sullivan should be given a chance to do the right thing and issue a final ruling before any review. He has refused to sentence Flynn, despite the Justice Department finding that Flynn should not have been charged. When Sullivan got the case back from the appeals court, he knew he would very likely be reversed if he did not dismiss the charge. Yet he again refused to rule and lambasted the administration, and said that he “still has questions” about the case.
If Sullivan waits a few more months, the Justice Department might reverse its position on Flynn if Biden wins the election. That creates a disturbing image in a case already marred by allegations of bias. When prosecutors try to manipulate a case by selecting the judge, it is denounced as judge shopping. If Sullivan delays until after the election, it will appear to be a type of president shopping, delaying a sentencing almost three years to wait for a president more amenable to jailing Flynn.
Voters will have answers to these questions, as Biden stated, “when the election is over” and no sooner. Then it will be a new day. In the “Truman Show,” the master architect of the artificial world of the flim rejected the concept of truth and declared, “We accept the reality of the world with which we are presented. It is as simple as that.” With a few weeks to the election, it is indeed as simple as that for the voters.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.