RUTHFULLY YOURS

President Trump said he wanted Supreme Court Justices in the mold of Antonin Scalia, and on Tuesday he got his wish. Though Justice Neil Gorsuch joined the four liberals on an immigration case, his logic would have made the late Justice proud.

In Sessions v. Dimaya, the government sought to deport a legal resident twice convicted of first-degree burglary. The Immigration and Nationality Act lets the government deport any immigrant convicted of a “crime of violence.” The question is whether first-degree burglary is a violent crime.

Section 16b of the criminal code includes a residual clause that defines a violent crime as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Writing for the majority, Justice Elena Kagan invoked the Court’s Johnson precedent and held that the residual clause was void for vagueness. In Johnson (2015), Justice Scalia’s majority opinion rejected a similar residual clause in the Armed Career Criminal Act and ruled that its vague language produced “more unpredictability and arbitrariness” than the Constitution allows.

Chief Justice John Roberts’s minority opinion tries to distinguish the residual clauses in the two cases to save Section 16b, which he notes “is incorporated into many procedural and substantive provisions of criminal law.” But he appears as concerned with the policy results of the Court’s decision as the legal merits.

The big news is Justice Gorsuch’s elegant concurring opinion that joins the majority result but for different reasons. “Vague laws invite arbitrary power,” he writes, “leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.” (See Comey, James nearby.)

Justice Gorsuch writes that Congress is free to define 16b with more specific crimes. But until it does the vague statute violates the due process right of individuals by giving license to police and prosecutors to interpret laws as they wish. This defense of individuals against arbitrary state power was a Scalia staple. Justice Gorsuch adds that vague laws also threaten the Constitution’s ordered liberty because they “risk allowing judges to assume legislative power.”

Mr. Trump’s Supreme Court nominee is sending a useful message that Congress should write clearer laws that aren’t subject to arbitrary interpretation. Congress can rewrite immigration law, and the President should be pleased with his nominee for doing what he promised.

Who’d have dreamed that with all the horrors committed by Bashar Assad, Vladimir Putin and Kim Jong Un, the small change of American political discourse would be whether the attorney-client privilege is being used to conceal the source of hush payments to “actresses”? But here we are.

In the 16th century, when our English forbears began resolving disputes through trial by jury rather than ordeal or battle, disputants had to rely on lawyers to present evidence and arguments. Thus the need for a rule that would encourage clients to disclose information to their lawyers.

That rule was the attorney-client privilege. It compromised the public’s otherwise unrelenting claim to every man’s evidence so as to encourage full and frank communication between lawyers and clients. The trade-off was that legal disputes were a search for the truth, and we would wind up with more truth if we didn’t search the parties’ lawyers to get it. Otherwise no client would disclose any unhelpful truth to a lawyer, and the process would collapse.

The privilege has a limit, the crime-fraud exception. The privilege is not recognized if the client is using the lawyer to commit a crime. For the most part this exception is read narrowly, to cover only the motive of the client. If the lawyer is acting on his own—for the client’s benefit but without the client’s authorization—evidence of the lawyer’s conduct would not be privileged, although evidence of the client’s statements would remain so.

That’s tidy in the abstract, and if a lawyer is served with a subpoena for information. But things get messy when, as occurred here, the party seeking the information is the government, and the means of getting it is a search warrant.

As to any particular client, the lawyer’s records will include myriad information, some of it client disclosures, some concerning conduct undertaken with the approval of the client—all of that privileged. There may also be records of the lawyer’s conduct and statements in pursuance of a criminal scheme, on his own or with the client—none of it privileged.

The government agents executing the warrant must isolate records that are relevant and unprivileged. They have no obvious way to do that other than to look at all records they seize, which means necessarily that they will look at records that should not be subject to a government search.

Agents typically do that by sending in a “filter team,” whose members have no contact with those involved in the investigation. That ensures that information that should not be examined—whether privileged or not—does not seep into, or “taint,” the investigation.

That’s the theory. Its success depends on the skill and honor of the filter team, and even in the best case it doesn’t prevent some government personnel from examining private records that are none of the government’s business.

The process risks damaging the significant public interest that led to the creation of the privilege in the first place. Is it worth the reward? One would think that would depend at least in part on the seriousness of the crimes under investigation.

In this case, the government has redacted any reference to particular crimes, although we learned earlier that perhaps Donald Trump’s lawyer, Michael Cohen, spent $130,000 on the eve of the 2016 election to buy the silence of Stephanie Clifford, a k a Stormy Daniels, about a sexual encounter she claimed she had with Mr. Trump several years ago. The payment itself would violate no law, but if its sole motive was to improve Mr. Trump’s chances in the election, it could constitute an in-kind campaign contribution that was not disclosed, in violation of campaign laws. The amount, more than $25,000, would put the violation in the felony category.

Have such violations been vigorously prosecuted in the past? In 2012 President Obama received campaign donations exceeding $2 million from sources that were not disclosed; he received another $1.3 million that exceeded contribution limits. The matter was settled after the election by the Obama Justice Department for a fine of $375,000 and no felony prosecution.

Another possible crime said to justify the search warrant is bank fraud. Here, one theory is that Mr. Cohen might have defrauded his bank by falsifying the purpose of the home-equity loan that was reportedly the source of the $130,000. But if Mr. Cohen’s equity is sufficient to provide collateral for the loan, why would its purpose matter to the bank? And if it doesn’t matter, there’s no fraud.

We can’t be certain that this is all that is under investigation. But if it is, the potential gains from an intrusive and unusual search warrant look meager compared with the interest put at risk. How confident are we in the self-control of those who set these events in train—who after all were supposed to be at work protecting the integrity of our elections?

Oddly, an episode involving a poison no doubt familiar to all three madmen mentioned in the first paragraph gives pause.

After anthrax spores killed five people, infected 17 others, and showed up in envelopes mailed to U.S. senators and media organizations in 2001, the current special counsel, then director of the Federal Bureau of Investigation, spent years chasing and destroying the reputation of a microbiologist named Steven Hatfill, zealous in the belief that Mr. Hatfill was the guilty party. Another zealot, James Comey, then deputy attorney general, said he was “absolutely certain” no mistake had been made.

After Mr. Hatfill was exonerated—he received more than $5.5 million in damages from the government—Mr. Mueller then decided that another microbiologist, Bruce Ivins, was the culprit. When Ivins committed suicide, Mr. Mueller pronounced the case closed. A subsequent investigation by the National Academy of Sciences suggests Ivins too was innocent.

Mr. Mueller is not a bad man, nor is Mr. Comey. It’s just that both show particular confidence when making mistakes, which makes one grateful for safeguards like the attorney-client privilege.

Mr. Mukasey served as U.S. attorney general (2007-09) and a U.S. district judge (1988-2006).

The federal judge overseeing the case against Donald Trump’s personal attorney Michael Cohen is the very same judge who officiated the wedding of left-wing billionaire George Soros and his then-42-year-old bride Tamiko Bolton in September of 2013, according to news reports.

Judge Kimba Wood performed the non-denominational ceremony, an honor that is often reserved for close and trusted members of a couple’s inner circle:

According to a Reuters report, the couple said their vows at Soros’ estate in Bedford, New York, in front of 500 “select guests.” The guest list included House Minority Leader Nancy Pelosi of California, then-California Lt. Gov. Gavin Newsom, World Bank President Jim Yong Kim, Estonia’s President Toomas Hendrik Ilves, Liberia’s President Ellen Johnson Sirleaf, and Prime Minister of Albania Edi Rama.

Twenty years earlier — at the behest of Hillary — Kimba Wood was nominated by President Bill Clinton to be attorney general. Wood withdrew her name from consideration after it became known that she had employed an illegal immigrant as a nanny.

WASHINGTON—Nominees to lead the State Department and Central Intelligence Agency are encountering resistance in the Senate, where critics of President Donald Trump’s are prepared to make their confirmation battles a referendum on his foreign-policy positions.

Mike Pompeo, the current CIA director and Mr. Trump’s pick to be the next secretary of state, is in danger of receiving an unfavorable committee recommendation, over concerns that his past hawkish statements complicate his ability to conduct diplomacy. While the full Senate could still vote to confirm him, that would mark the first time in more than 70 years the chamber would have bypassed a committee to do so.

Gina Haspel, the nominee to lead the CIA and now the agency’s deputy director, is expected to face questions about her involvement in a post-9/11 interrogation program that detractors say amounted to torture. Sen. Rand Paul (R., Ky.) said he would oppose her nomination over her role in the interrogation program, while Sen. John McCain (R., Ariz.)—who was tortured while a prisoner of war in Vietnam—has asked for additional details about Ms. Haspel’s involvement.

Several other Republicans have told The Wall Street Journal they have concerns about Ms. Haspel and haven’t decided whether to support her nomination. One Democrat was unsatisfied with her answers in a private briefing about her role in the destruction of videos of the interrogations, according to a person familiar with the matter.
Gina Haspel, now the CIA’s deputy director, is expected to face her confirmation hearing in coming weeks. Photo: handout/Reuters

The Senate Foreign Relations Committee is expected to vote on Mr. Pompeo’s nomination as soon as next week, while the White House has yet to formally submit Ms. Haspel’s nomination to the Senate. The Senate Intelligence Committee is expected to hold a confirmation hearing for her in the coming weeks. CONTINUE AT SITE

At a hearing in Manhattan federal court Monday afternoon, a judge denied a request by President Trump and his lawyer, Michael Cohen, to prevent investigators from reviewing materials seized from Cohen’s office and residences.

Cohen, who describes himself as the president’s “fixer,” has not been charged with any crimes at this point. Clearly, though, he is the focus of a serious criminal investigation by the FBI and federal prosecutors in the Southern District of New York (SDNY). Yesterday’s hearing before District Judge Kimba Wood addressed the question of whether last week’s raids violated the attorney–client (A-C) privilege of President Trump and Cohen’s other clients — though there turn out to be precious few of those.

Yet we are already way beyond that question. Anti-Trump journalists are titillated by a side issue: the hearing’s revelation that talk-radio and Fox News host Sean Hannity, an ardent Trump supporter, has been identified as one of Cohen’s clients. But the real news is that prosecutors say Cohen has been under investigation for months. The probe involves a range of crimes, “many of which have nothing to do with his work as an attorney, but rather relate to Cohen’s own business dealings,” the government explained.

Consequently, even before the raids, the court authorized the FBI and prosecutors to search various email accounts maintained by Cohen. While the government reports that “zero emails were exchanged [by Cohen] with President Trump,” the existence of this monitoring means prosecutors long ago had to implement procedures to safeguard the A-C privilege.

The raids, then, are almost beside the point. The investigation is apparently far along, a grand jury is considering evidence, and the revelation that the probe is largely unrelated to Cohen’s law practice makes sense since he doesn’t appear to have much of one.

Four takeaways.

1. Scope of the Cohen Investigation
In this weekend’s column, I posited that the SDNY would probably not go through the legal complications attendant to searching a lawyer’s premises unless crimes more serious than a potential campaign-finance violation were involved. The government was obviously exploring such questions as whether felony fraud or extortion had been committed in inducing two women to remain mum about sexual liaisons they claim to have had, a decade ago, with Donald Trump. Still, we do not know the full range of the Cohen investigation.

It is probably safe to assume that the SDNY investigation has no relation to supposed Trump-campaign collusion with Russia. If it did, Special Counsel Robert Mueller would have tried to fold it into his ongoing probe rather than referring it to the SDNY. But beyond that deduction, all we can say is that the probe involves more than Cohen’s legal representation of clients, which appears to be more of a sideline than a steady occupation.

On Sunday evening, ABC preempted its regularly scheduled programming to broadcast an exclusive interview conducted by “This Week” host George Stephanopoulos with former FBI Director James Comey. The star treatment is part of an all-out publicity campaign that Comey, fired by President Trump less than one year ago, has launched to promote his new book, “A Higher Loyalty: Truth, Lies, and Leadership.” How Comey’s portrayal of himself as a virtuous man selflessly devoted to the public interest fits with his rush to cash in on public service by disclosing details of his relationship with a sitting president is one of the salient questions Stephanopoulos failed to pose Sunday night.

ABC’s chief political anchor did elicit from Comey a variety of denunciations of Trump. They were newsworthy but no surprise. Was anyone caught off guard, for example, when the disgruntled former employee who has traded barbs with the president on Twitter likened him to a New York City mob boss?

It was also, alas, no surprise that Stephanopoulos failed to ask Comey many questions that touch on eminently newsworthy issues and directly address the rule of law and the integrity of law enforcement agencies to which Comey proclaims devotion.

Here are 10:

1) In December 2003, you were deputy attorney general. When then-Attorney General John Ashcroft recused himself, it fell to you to determine whether to appoint a special counsel to investigate the leak, in spring of that year, of Valerie Plame’s CIA employment. You named your good friend (and godfather to your daughter) Patrick Fitzgerald, who conducted a long, drawn-out investigation that resulted in the 2007 conviction of Vice President Dick Cheney’s former chief of staff, Scooter Libby (pardoned by President Trump on Friday) for obstruction of justice, making a false statement, and perjury — but not for leaking Plame’s employment. Indeed, by early autumn 2003 — a few months before you appointed Fitzgerald — Deputy Secretary of State Richard Armitage had informed the FBI that he leaked Plame’s employment. By that time, the CIA had determined that the leak did not harm national security. If, as acting attorney general, you were aware in December 2003 of the leaker’s identity and that the leak had not harmed national security, why did you appoint a special counsel?

Comey, McCabe, Clapper, Brennan, Lynch, Andrew Weissmann, Bruce and Nellie Ohr, Harry Reid, Samantha Power, Clinton attorney Jeannie Rhee . . .

If collusion is the twin of conspiracy, then there are lots of colluders running around Washington.

Robert Mueller was tasked to find evidence of Trump and Russia collusion that might have warped the 2016 campaign and thrown the election to Trump. After a year, his investigation has found no concrete evidence of collusion. So it has often turned to other purported Trump misadventures. Ironically, collusion of all sorts — illegal, barely legal, and simply unethical — has been the sea that Washington fish always swim in.

Christopher Steele, hired by the Hillary Clinton campaign through a series of firewall intermediaries, probably paid Russian sources for gossip and smears. If there is a crime of collusion, then Clinton-campaign contractors should be under investigation for seeking Russian help to find dirt on Trump, to spread smears around throughout the DOJ, FBI, and CIA, and to make sure that the dirt was leaked to the press in the final weeks of the campaign — for the sole “insurance” purposes of losing Trump the election.

Some sort of collusion likely occurred when the Obama DOJ and FBI sought FISA-court requests to surveille Carter Page and, indirectly, possibly many other members of the Trump campaign. On repeated occasions, they all made sure the FISA-court judges were not apprised that the Steele dossier, the chief basis for these requests, was paid for by the Clinton campaign, that the dossier was not verified by the FBI, that the dossier was the source of media stories that in circular fashion were used to convince the FISA judges to grant the surveillance requests, and that the FBI had severed relations with Steele on the basis of his unreliability. Such a collusion of silence was similar to James Comey’s admission that he apprised President Trump of every iota of lurid sexual gossip about him — except that his source was a dossier paid for by Hillary Clinton and written by a campaign operative hired to find dirt on Trump and who had been working with Comey’s FBI to get FISA approval to spy on Trump’s own aides.

Last year, the court jester of the Never Trumpers declared that, “The onus is on the president-elect to prove he’s not Putin’s puppet.”

Last week, the President of the United States ordered the strikes that took out Syria’s chemical weapons research facility, its primary Sarin nerve gas facility and another chemical weapons facility.

Putin was not pleased. But neither was Max Boot, who had accused Trump of being Putin’s puppet. Boot had already gone from attacking Trump for being weak on Assad to urging, “Let Assad Win.”

Who’s the puppet now?

In March, Boot had urged Trump to launch cruise missiles against the perpetrators of the chemical attacks. Now that Trump did it, Boot is dismissing the very thing he wanted and attacking Trump for not overthrowing Assad. Even though Boot had just disavowed regime change in, “Let Assad Win.”

What is Max Boot’s real position on Syria? He doesn’t have one. He only has a position on Trump.

Never Trumpers like Max Boot wanted us to believe that they opposed Trump on foreign policy grounds. But Syria shows that they don’t have a foreign policy. Only an anti-Trump policy.

They don’t care about Syria. And they don’t care about Russia. All they care about is destroying Trump. Like Boot, their old national security journalism has been replaced by national security trolling. The national security trolls no longer discuss foreign policy, but how much they despise President Trump.

Boot flip-flopped on Assad. If hostilities with Russia grow, his next column will be, “Let Putin Win.”

The most striking thing about the reaction of Never Trumper national security trolls to the Syrian strikes was their lack of interest in the topic. Most remained fixated on pushing Mueller scandal narratives.

“If Pres. Trump takes appropriate action against Assad this #NeverTrumper will of course support him,” Bill Kristol tweeted on April 6. The next day he tweeted a quote about events in Syria from an anti-Israel leftist ,”No decent person can ignore what’s happening.” On the 8th, Kristol blamed Trump for Assad’s chemical weapons use.

Once the bombings began, Kristol’s support consisted of tweeting about more Mueller scandals.

What a delicious hors d’oeuvre Michael Horowitz gave the world on Friday! The inspector general for Department of Justice finally issued his eagerly awaited (eagerly awaited by some of us, anyway) report on Andrew McCabe, the disgraced former deputy director of the FBI.

Note that this is only an appetizer. In the coming weeks, Horowitz will follow up with entrees on the FBI’s partisan activities in the 2016 presidential election and, later, another report on (if I may employ the term) collusion with the State Department.

As of this writing, it is unclear exactly what the scope of the inspector general’s inquiries will be.

Speaking for myself, I hope the desert course includes a close look at the January 5, 2017 meeting at the White House meeting at which President Obama, Vice President Joe Biden, NSA director Susan “By the Book” Rice, and Acting Attorney General Sally “Insubordinate” Yates were briefed by the country’s chief spooks—former FBI director James “Higher Loyalty” Comey, NSA chief Michael Rogers, CIA chief John “I Voted for Gus Hall” Brennan, and James Clapper, the former director of National Intelligence who delighted the television audiences everywhere when he instructed Congress that the Muslim Brotherhood was “a largely secular organization” that had “eschewed violence.” The country was in the very best of hands back then! What was the subject? Exactly what they were and were not going to tell the incoming administration about the ongoing investigation into possible Russian intervention in the 2016 presidential election? The “knotty question,” as Andrew McCarthy put it in a searing column on the event, was how to “engage” the incoming administration while also keeping them in the dark. Amazing.

But I digress. We’ll have to wait for Horowitz to serve up the additional courses he has cooking. But right now we can enjoy his refreshing treat of McCabe-kabob, grilled to perfection.

Andrew McCabe, you might recall, was a central player in the pseudo-investigation of Hillary Clinton’s misuse of classified information and self-enrichment schemes while Secretary of State. He was one of the people who made sure that went nowhere. He was also a central figure in the get-Mike-Flynn operation and, later, the Great Trump Hunt that has been occupying Robert Mueller for nearly a year.

McCabe leaked information about an investigation to a Wall Street Journal reporter, lied about leaking in casual conversations with superiors as well as under oath. Attorney Jeff Sessions, digesting a preliminary report on McCabe’s conduct, fired him in March 2018 (not even a month ago, but it seems like forever).

The Left got its collective nappy in a twist over that, claiming that it somehow impeded Mueller’s boundless fishing expedition and also that it was callous to Andrew McCabe because he was fired just a day before he was entitled to his full pension. (He did not, by the way, “lose his pension” as some reported, merely a final escalator, and it is not even clear that that will survive litigation.)

It’s obvious he deserved to be fired. All there is to quibble about is the precise reason why.

For months, the media and President Trump’s loudest opponents convinced themselves that James Comey’s much-anticipated book was the ticking bomb that would blow up the Trump administration. Instead: No boom.

Comey hoped to guide the spotlight to his self-image as ultimate G-Man — a stalwart, sober, nonpartisan public servant whose courage and rectitude guided him through a moral, legal, and political thicket. Instead, the book reveals Comey to be a hack. A blunderer. A blowhard. He took a mighty swing at Trump and managed to punch himself in the eye.

Not only does the book offer zilch in the way of damaging new evidence against the president in the Russia matter or anything else, but its most revealing and most noticed passage pulverizes Comey’s own reputation. The former FBI director is being pilloried from left, right, and center. Perhaps even worse for him, he is being mocked as a pompous ass from left, right, and center. This is quite an achievement when you consider that it isn’t a Fire and Fury–style exposé but Comey’s own memoir that is making a fool of him.

“Donald Trump is contagious: He turned James Comey into Donald Trump” runs the headline of Karen Tumulty’s column in the Washington Post. Tumulty highlights Comey’s “pettiness, insecurity and need for affirmation,” plus an “ego” that “stays in high gear.” Fellow WaPo columnist Alexandra Petri relentlessly spoofs Comey’s gassy references to Reinhold Niebuhr and his sanctimonious self-regard: “In the beginning was the word, and the word was with God, and the word was God, and then, on Dec. 14, 1960, I, James Comey, was born. The initials, as Reinhold Niebuhr would tell us, are no coincidence.” The paper’s nonfiction-book critic, Carlos Lozada, compares Comey’s lack of self-awareness to Trump’s, questions Comey’s ethics, and says his “self-criticism — and self-regard — is almost comical,” scorning Comey both for lying about playing basketball for William & Mary and for ostentatiously flogging himself for the fib later. The very D.C. collision of the trifling and the sanctimonious in Comey’s personality is irresistibly funny: He’s James Comedy.