Category: Criminal law

The Incredible Shrinking Merrick Garland

 

 

 

Below is my column in USA Today on the diminishing role of Attorney General Merrick Garland at the Justice Department after a series of controversies. As a well-known moderate, many of us had hoped that Garland could be a unifying presence at the Department; assuring a divided nation that justice would be pursued in an even-handed and apolitical fashion. Yet, in controversy after controversy, Garland has failed to take modest steps to make such assurances. After well documented cases of bias and false statements by FBI and DOJ officials in past investigations, there was a clear need for greater transparency and independence in investigations. Garland has consistently swatted away such options. This week, Garland stayed on that path and refused to release any part of the affidavit used as the basis for the search of Mar-a-Lago. This included the possible issuance of a redacted copy or even responses to specific concerns over the timing or basis for the search. While Trump has called for the release of the affidavit, Garland will not even release those sections dealing with the account of the prior discussions and agreements with the Team Trump. There is little proactive effort to anticipate or address such concerns as vividly shown in the last week.

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Why the Case Against Donald Trump Remains Incomplete

Below is my column in the Hill on the lingering questions concerning any prosecution of former President Donald Trump for the retention of classified or sensitive material. As previously discussed, the three referenced criminal provisions do not require classified status of documents to be the basis for prosecution. However, if the documents were declassified, it would make any prosecution very difficult, if not untenable, though the obstruction count could be based on affirmative false representations made to the government. The point is only that we still do not have sufficient information to judge the basis for the raid or the prospects for prosecution despite the often breathless coverage.  The affidavit remains key to ending this speculation and quelling conspiracy theories. That is why Attorney General Merrick Garland should call for its unsealing.

Nevertheless, figures like John Dean are saying that defenders of the former president will “have egg on their faces” when this case is done and presumably Trump is prosecuted. Perhaps, but what is clear is that there is no such risk in others claiming an array of proven crimes for six years that were never charged. Figures who pushed the debunked Russian collusion, incitement, or bizarre attempted murder claims are now claiming with the same certainty that conviction is finally at hand. Once again, before the eggs fly, the release of actual evidence would be useful.

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Justice Department Accused of Taking Attorney-Client Material at Mar-a-Lago

Fox News is reporting that the FBI seized boxes containing attorney-client privileged and potentially executive privileged material during its raid Mar-a-Lago. When the raid occurred, I noted that the legal team had likely marked material as privileged at the residence and that the collection could create an immediate conflict over such material. Now, sources are telling Fox that the Justice Department not only took attorney-client material but has refused Trump requests for a special master to review the records.

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Five Lingering Questions In the Wake of the Mar-a-Lago Raid

Former President Donald Trump has waived any objections to the release of the warrant and property receipt after the filing of a motion by the Justice Department. The motion, however, did not seek the release of the most important document in this controversy: the supporting FBI affidavit. That is the document that would reveal what the FBI told the magistrate about the prior communications with the Trump team and the specific allegations of the status of the documents in question. Continue reading “Five Lingering Questions In the Wake of the Mar-a-Lago Raid”

The Mar-a-Lago Raid: Criminal Prosecution or Political Indemnification?

Below is my column in the Hill on the raid on Mar-a-Lago. Questions continue to grow over the necessity for the raid as opposed to the use of a subpoena or other means. According to the Trump counsel, the former president was given an earlier subpoena and complied with it and then voluntarily gave the FBI access to a storage area and agreed to add a specified lock on the room. It is not clear why a second subpoena would not have sufficed if there were other covered material under the Presidential Records Act.

There is also a report of a confidential informant or source used in the operation. The only thing clear is that, while the J6 Committee does not appear to have changed many minds, the raid has. Any possibility that Donald Trump might not run seems to be evaporated with any likely challengers in the wake of the raid. That could change as we learn more details but the raid has galvanized Trump’s supporters. Ironically, Newsweek reported that the FBI was hoping the raid with Trump out of town would be a “lower profile” option — a notion that borders on the delusional. The lower profile option is called a subpoena.

Here is the column:

Continue reading “The Mar-a-Lago Raid: Criminal Prosecution or Political Indemnification?”

Poll: The J6 Hearings Had Virtually No Impact on Changing the Public Views

For months, we have been discussing the heavy-handed, one-sided approach of the J6 Committee in the presentation of evidence and witnesses. Both sides blame each other for the absence of a single Republican-selected member. Yet, the Committee treated the lack of balance as a license to present a rigid and scripted account of events and actions, including editing out countervailing views or evidence. For those of us who welcomed the greater transparency on the events of that terrible day, it was a lost opportunity to have a truly historic investigation akin to Watergate or the Kennedy assassination. The result is now evident and unsurprising.  A Monmouth University poll shows that almost 90 percent of respondents report that the hearings have made no change in how they view the J6 riot.  Moreover, despite the overwhelming cooperation and support of the media with the Committee, the vast majority believe that the J6 Committee was a political rather than investigative exercise, focused on opposing Trump rather than disclosing the facts of January 6th. Continue reading “Poll: The J6 Hearings Had Virtually No Impact on Changing the Public Views”

“The Whole Enchilada”: Pundits Wrongly Claim the Mar-a-Lago Raid Could Disqualify Trump from Future Office

The FBI raid on Mar-a-Lago has unleashed a familiar euphoria among critics who have longed for–agents descending upon the President’s residence in a criminal operation. One MSNBC pundit declared that day of the “orange jumpsuit” may finally be at hand while another simply exclaimed “hallelujah.” It was a tad premature since we do not even know if classified material was found and, if so, whether there is a criminal case to be made from such a discovery. Continue reading ““The Whole Enchilada”: Pundits Wrongly Claim the Mar-a-Lago Raid Could Disqualify Trump from Future Office”

“What About His Son?”: CNN’s Stelter is Latest Media Figure to Suddenly Discover the Hunter Biden Scandal

C-Span/YouTube

I recently wrote a column on the sudden shift in coverage of the Hunter Biden scandal in the mainstream media, a shift that has coincided with widespread pieces pushing President Joe Biden to change his mind about running for reelection. As political and media figures fret about Joe Biden endangering Democratic control of Congress and the White House, there is now increased willingness to acknowledge the long buried scandal. Few are as striking as the shift of CNN’s media pundit Brian Stelter, who seems to have suddenly discovered that there are serious allegations of influence peddling by the Biden family.  After previously calling the Hunter Biden story “manufactured” and “whataboutism,” Brian Stelter is now saying that the story “is not just a right-wing media story” while asking “What about his son?” For those skeptical of the sudden media-wide conversion, it sounded more like “what about his father.” Continue reading ““What About His Son?”: CNN’s Stelter is Latest Media Figure to Suddenly Discover the Hunter Biden Scandal”

Stay Tuned: Cheney Declares J6 Holding “Much More” Evidence of Possible Crimes

For weeks, critics of the J6 Committee have noted that the committee members promised to present compelling evidence to support criminal charges, but it has not yet presented that case after nine hearings. Even some Democratic figures, including former prosecutor and former Sen. Heidi Heitkamp (D-N.D.), do not believe a strong case has been made for an indictment.  Now, Vice Chair Liz Cheney (R-WY) is making the same claim that there is “much more” undisclosed evidence but says that the Committee will not release the evidence (including possible criminal referrals) until the Fall — just before the midterm elections. Continue reading “Stay Tuned: Cheney Declares J6 Holding “Much More” Evidence of Possible Crimes”

The Art of Scandal Implosion: The Political and Media Elite Prepare To Drop Hunter Biden in a “Controlled Demolition”

Below is my column in Fox News on the status of the Hunter Biden investigation and how it presents a challenge for many in Washington. Due to the continued work of a small number of media outlets like the New York Post, it is no longer possible to bury the story or continue the false claim that it is “Russian disinformation.” The hope now appears to be a “controlled demolition” where Hunter is indicted on limited grounds without causing collateral damage to the political and media establishment. Scandal implosion is as much an art as it is a science and could be the most brilliant achievement in this ongoing scandal.

Here is the column:

Continue reading “The Art of Scandal Implosion: The Political and Media Elite Prepare To Drop Hunter Biden in a “Controlled Demolition””

Is “Inconceivable” Provable? The Justice Department Needs More Than a Vizzini Charge to Prosecute Trump

Below is my column in the Hill on the ongoing federal grand jury investigation reportedly looking into January 6th and potential criminal charges against former president Donald Trump. If there is an indictment, it cannot be based on a Vizzini charge that it is simply “inconceivable” that anyone would believe that there was widespread election fraud. Notably, a new Harvard study has found that most people who went to the Capitol on January 6th did so in loyalty to Trump rather than to engage in insurrection. Millions continue to believe that the election was stolen. However, any case would likely be tried in Washington, D.C., which constitutes arguably the worst possible jury pool politically for the former president.

Here is the column:

Continue reading “Is “Inconceivable” Provable? The Justice Department Needs More Than a Vizzini Charge to Prosecute Trump”

Harvard Study: J6 Rioters Were Motivated by Loyalty to Trump, Not Insurrection

According to The Crimson, Harvard has completed what it calls the most comprehensive study of the motivations of those involved in the January 6, 2021 Capitol riot. Many will not be surprised to learn that most participated out of loyalty to former President Donald Trump. However, the study also found that only eight percent harbored “a desire to start a civil war.” That is inconsistent with the virtual mantra out of the J6 Committee and many in Congress that this was an insurrection rather than a riot. Some of us (including many in the public) have previously questioned that characterization. Yet, it reflects the relatively small number of seditious conspiracy charges brought by the Justice Department. Continue reading “Harvard Study: J6 Rioters Were Motivated by Loyalty to Trump, Not Insurrection”

“I’ve Delivered”: New Disclosures Demolish President Biden’s Denials on Hunter Dealings

New disclosures are demolishing the continued denials of President Biden that he had no knowledge and nothing to do with his son’s business interests. The emails (reviewed by Fox and The Daily Mail) include exchanges with at least 14 of Hunter Biden’s business associates while Joe Biden was vice president. They cast further doubt on the president’s repeated claims that he had no knowledge of his son’s foreign business dealings.  In one almost plaintive email, Hunter actually complains to an associate that he had delivered on everything that was demanded of him in getting access to his father and the White House. Continue reading ““I’ve Delivered”: New Disclosures Demolish President Biden’s Denials on Hunter Dealings”

Grassley: Whistleblowers Report That DOJ Downplayed Hunter Biden Evidence in 2020

My recent column explored whether time is running out for Hunter Biden. The answer may be “no” if Sen. Chuck Grassley (R-IA) is right about what whistleblowers are telling him about the investigation.  CBS is reporting that “highly credible” whistleblowers informed him that officials within the FBI and the Justice Department are downplaying or dismissing negative evidence on Hunter Biden. Given the documented bias of the FBI and DOJ during the Russian collusion investigation, such allegations must be considered seriously given the baffling refusal of Attorney General Merrick Garland to appoint a Special Counsel. Continue reading “Grassley: Whistleblowers Report That DOJ Downplayed Hunter Biden Evidence in 2020”

Is the Clock Finally Running Out on Hunter Biden?

Below is my column in The Hill on the expiration of the grand jury in Delaware and reports that the Hunter Biden investigation is at a “critical stage.”  These lingering questions could have been avoided if Attorney General Merrick Garland had responded to new disclosures with the appointment of a special counsel. In 2021, emails and recordings from the laptop further fueled questions of whether President Joe Biden could have been a beneficiary of some of these dealings and how his early denials of knowledge appear demonstrably false. The failure to appoint a special counsel in this case is a textbook example of why such appointments are necessary to avoid such doubts about the scope or independence of an investigation.

Here is the column:

Continue reading “Is the Clock Finally Running Out on Hunter Biden?”