RUTHFULLY YOURS

We may be thankful to Alan Dershowitz, Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School, for reminding us of the delicious irony of an investigation which began with “reports” of collusion with the Russians by Team Trump and charges of Russian hacking of our elections, now reverting to the tactics of Russia’s most murderous tyrant, Josef Stalin. As Dershowitz writes in the Washington Examiner:

Special counsel Robert Mueller was commissioned to investigate not only crime but the entire Russian “matter.” That is an ominous development that endangers the civil liberties of all Americans.

Federal prosecutors generally begin by identifying specific crimes that may have been committed — in this case, violation of federal statutes. But no one has yet identified the specific statute or statutes that constrain Mueller’s investigation of the Russian matter. It is not a violation of any federal law for a campaign to have collaborated with a foreign government to help elect their candidate…

One does not have to go back to the Soviet Union and Lavrentiy Beria’s infamous boast to Stalin, “Show me the man and I will show you the crime,” in order to be concerned about the expansion of elastic criminal statutes. There are enough examples of abuse in our own history.

From McCarthyism to the failed prosecutions of Sen. Ted Stevens, Rep. Thomas DeLay, Gov. Rick Perry and others, we have seen vague criminal statutes stretched in an effort to criminalize political differences.

Indeed, now we here reports that Mueller’s investigation will range anywhere from Jared Kutchner’s finances to perhaps any unpaid parking tickets Sean Spicer may have. To paraphrase the boast of head of Stalin’s secret police, show Mueller the man, and he will find a crime, just as Mueller’s best friend, James Comey, found with Martha Stewart.

There too we see a vindictive prosecutor in search of a crime and it doesn’t have to be the original charge, if there is an original charge. As the Daily Caller reported:

FBI Director James Comey declined to recommend criminal charges against former Secretary of State Hillary Clinton for mishandling classified material Tuesday. But back in 2004, he led what legal observers call a “petty and vindictive” prosecution against interior design icon Martha Stewart for a lesser offense.

Stewart served a five-month prison sentence in 2004 at the Federal Prison Camp in Alderson, West Virginia, also known as “Camp Cupcake,” for lying to federal investigators about possible insider trading. In the years since the case, there is a consensus in the legal community that Comey’s prosecution was overzealous and vindictive.

Donald Trump earned respect from the Washington establishment for appointing three of the nation’s most accomplished generals to direct his national-security policy: James Mattis (secretary of defense), H. R. McMaster (national-security adviser), and John Kelly (secretary of homeland security).

In the first five months of the Trump administration, the three generals — along with Secretary of State Rex Tillerson, the former Exxon Mobil CEO — have already recalibrated America’s defenses.

At home, illegal immigration is down by some 70 percent. Abroad, a new policy of principled realism seeks to reestablish deterrence through credible threats of retaliation. The generals are repairing old friendships with allies and neutrals while warning traditional enemies not to press their luck.

Trump has turned over most of the details of military operations to his generals. According to his critics, Trump is improperly outsourcing to his generals both strategic decision-making and its tactical implementation.

But is Trump really doing that?

In his campaign, Trump vowed to avoid new ground wars while not losing those he inherited. He pledged to wipe out ISIS and radical Islamic terrorism without invading Middle Eastern countries to turn them into democracies.

Those are wide but nonetheless unmistakable parameters.

Within them, the U.S. military can drop a huge bomb on the Taliban, strike the chemical weapons depots of Syria’s Bashar Assad, or choose the sort of ships it will use to deter North Korean aggression — without Trump poring over a map, or hectoring Mattis or McMaster about what particular move is politically appropriate or might poll well.

Other presidents have done the same.

A wartime President Lincoln — up for reelection in 1864 — wanted the tottering Confederacy invaded and humiliated. But he had no idea that General William Tecumseh Sherman would interpret that vague wish as nearly destroying Atlanta, and then cutting his supply lines to march across Georgia to the sea at Savannah.

When Sherman pulled off the March to the Sea, Lincoln confessed that he had been wrongly skeptical of, totally surprised, and utterly delighted with Sherman’s victories. He then left it to Sherman and General Ulysses S. Grant to plan the final campaign of the war.

Editor’s Note: The following is a memo crafted by the author as it ought to be written to Special Counsel, Robert Mueller from the two Judiciary Committee chairmen in Congress.

If only . . .
From: Charles Grassley – Chairman, Senate Judiciary Committee & Bob Goodlatte – Chairman, House Judiciary Committee

To: Robert Mueller – Special Counsel, Department of Justice

Subject: Oversight of your office
As our committees consider the Justice Department’s budget request to authorize appropriations for the department’s many activities for the upcoming fiscal year, we try to understand those activities’ scope and efficacy, focusing especially on ones that raise questions with the public. Making well-informed judgments regarding funding and legislative guidance of departmental activities under our purview is our constitutional responsibility. We are confident that you, having been a valuable partner in this exercise of that responsibility during your years as director of the FBI, will answer these questions, because they are essential for the Congress and the public’s understanding of what your office is doing and not doing.

The deputy attorney general established your office to “to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities” specifically about “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump…” .

If we read this correctly, you are to report to the nation’s chief law enforcement officials about their “duties and responsibilities.” The duties and responsibilities of the Department of Justice—correct us if we are mistaken—can only be the enforcement of the laws of the United States.

We hope that you will forswear any investigation not pursuant to the underlying crime, if any, specified in your appointment order, and can assure you that our committees will make sure that no funds authorized by us can be used for such purposes.

This being the case, would you enumerate for us the laws of the United States which you believe “individuals associated with the campaign of President Donald Trump” may have broken, who these “individuals” may be, and the “probable cause” for so believing in the possibility of their violation, that suffices as basis for investigating them or anyone else regarding “links and coordination “with “the Russian government.”

The Deputy attorney General’s establishment order also contains the anodyne words “any other matters that arose or may arise from the investigation.” To understand what these words mean to you, we must ask: For you to investigate any person, what relationship need there be between that person’s activities and any violation of a U.S statute related to that person’s “links and/or coordination between the Russian government…”? Since the Department of Justice’s purview stops at the edge of politics, what do you believe that these words do not authorize you to “inform or consult” about in a prosecutorial manner?

So I’ve been wondering: Why on earth does a prosecutor, brought in to investigate a case in which there is no apparent crime, need a staff of 14 lawyers?https://amgreatness.com/2017/06/21/muellers-empire-legions-lawyers-bottomless-budget-limitless-jurisdiction/

Or, I should say, “14 lawyers and counting.” According to the press spokesman for special counsel Robert Mueller—yeah, he’s got a press spokesman, too—there are “several more in the pipeline.”

Concededly, none of Mueller’s recruits requires Senate confirmation, as do Justice Department officials—notwithstanding that the former may end up playing a far more consequential role in the fate of the Trump administration. But does it seem strange to anyone else that, by comparison, the president of the United States has managed to get—count ’em—three appointees confirmed to Justice Department positions in five months?

A special counsel, the need for whom is far from obvious, has in just a few days staffed up with four times the number of lawyers. And all for a single investigation that the FBI has described as a counterintelligence probe—i.e., not a criminal investigation, the kind for which you actually need lawyers.

The way this is supposed to work is: the Justice Department first identifies a likely crime, and then assigns a prosecutor to investigate it. Here, by contrast, there are no parameters imposed on the special counsel’s jurisdiction. Mueller is loosed—with 14 lawyers and more coming—to conduct what I’ve called a “fishing expedition.”

Oh, and about those three Justice Department appointees: One of them, Attorney General Jeff Sessions, has already recused himself from the investigation in question—the department’s most high profile undertaking. Another, Deputy Attorney General Rod Rosenstein, is reportedly weighing whether he, too, should bow out. Perhaps he figures he has already done quite enough, having sicced a special-counsel investigation on the Trump Administration by flouting both the regulation that requires a basis for a criminal investigation before a special counsel is appointed, and the regulation that requires limiting the special counsel’s jurisdiction to the specific factual matter that triggers this criminal investigation.

The way this is supposed to work is: the Justice Department first identifies a likely crime, and then assigns a prosecutor to investigate it. Here, by contrast, there are no parameters imposed on the special counsel’s jurisdiction. Mueller is loosed—with 14 lawyers and more coming—to conduct what I’ve called a “fishing expedition.” But it is actually worse than that, as sagely observed in these pages by my friend John Eastman, the Claremont Institute scholar and former Chapman Law School dean. Mueller’s probe is the functional equivalent of a general warrant: a boundless writ to search for incriminating evidence. It is the very evil the Fourth Amendment was adopted to forbid: a scorch-the-earth investigation in the absence of probable cause that a crime has been committed.

For now, Mueller appears utterly without limits, in his writ and in his resources. As the ease with which he has staffed up shows, it is not hard to recruit lawyers. All you need is money. Mueller has a bottomless budget, thanks to a bit of Treasury Department chicanery known as “permanent, indefinite appropriations.”

Under the Constitution’s Appropriations Clause, no funding is supposed to be paid out of the treasury unless Congress has approved it in advance. Under the Framers’ design, with an eye toward limited, accountable government, every spending initiative must compete with every other one when Congress enacts a budget. Lawmakers must decide what we can and can’t afford when they draw on what is supposed to be the finite pot of money confiscated from taxpayers. We are supposed to know what we are underwriting and what it will cost.

John Eastman, law professor at Chapman University, writes in American Greatness this week that the powers invested in Special Counsel Mueller to investigate “Russian hacking/collusion/obstruction poses grave dangers to our body politic and our liberty.” His advice to President Trump: Fight fire with fire. Turn the law and the courts back on your opponents. Trump is being investigated without any probable cause of a crime. The Obama administration, in contrast, is a target-rich arena of criminal activity.

It is unconstitutional to issue a search warrant when there has been no crime and there is no probable cause. But that is exactly what President Trump’s DOJ has inflicted on the president and his team with Mueller’s special investigation. It was not just cowardice, but folly for the DOJ to buckle to the left-wing media’s hysterical insistence to investigate our president’s alleged collusion with the FSB.

According to Professor Eastman:

The special counsel will not to track down the details of a crime known to have been committed and determine “who dunnit,” but will scour the personal and business affairs of a select group of people – the President of the United States, members of his family, his business associates, and members of his presidential campaign and transition teams – to see if any crime can be found (or worse, manufactured by luring someone into making a conflicting statement at some point). This is not a proper use of prosecutorial power, but a “witch hunt,” as President Trump himself correctly observed. Or, to put it more in terms of legalese, this special prosecutor has effectively been given a “writ of assistance” and the power to exercise a “general warrant” against this select group of people, including the President of the United States, recently elected by a fairly wide margin of the electoral vote.

That is the very kind of thing our Fourth Amendment was adopted to prevent. Indeed, the issuance of general warrants and writs of assistance is quite arguably the spark that ignited America’s war for independence.

Professor Eastman suggests fighting fire with fire, prosecution with prosecution.

In the late 1700s, the newly independent republic of the United States was continually beset by piracy at sea from four Muslim Barbary Coast states: Algiers, Tunis, Tripoli, and Morocco. The U.S., with limited military resources and staggering debts from the War for Independence, sought to establish secure routes for international commerce to spur rapid economic growth needed to build the emerging country. Yet the U.S. faced constant Ottoman attacks on its merchant ships. American and European ships venturing into the region routinely faced capture of crewmembers, who risked being held as slaves until hefty ransoms were paid. The persistent Barbary pirate raids created a major crisis for a new nation that could not afford to either suffer from economic isolation or pay the exorbitant tributes demanded by the pirates.

In Thomas Jefferson and the Tripoli Pirates (Sentinel, 2015), coauthors Brian Kilmeade and Don Yaeger explore “the forgotten war that changed American history.” In an action-packed thriller that aptly captures the time, place, politics, and circumstances, the authors chronicle the crisis leading up to the Barbary Wars and their triumphant aftermath.

The authors begin their chronicle with 1785, when the American merchant vessel, the Dauphin, was intercepted off the coast of Portugal by an Algerian cannon-equipped vessel, suffering the same fate as many ships of the day venturing near the Barbary Coast. Together with the crew of the schooner Maria, captured the same year, the sailors were shipped off to Algiers to spend years or their entire lifetimes in slavery under the Ottomans.

Kilmeade and Yaeger explain that North African coastal states sustained their fiefdoms by routinely sending off ships to cruise the east Atlantic and Mediterranean looking for prey. For centuries, ships had been attacked in international waters and had their crews and cargoes held for ransom, even those belonging to the great naval powers of the day, France and Great Britain. Rather than fight the pirates, these countries preferred to pay annual tributes to purchase safe passage for their vessels.

John Adams and Thomas Jefferson, then respective American ambassadors to Britain and France, were confounded by the Muslim practice of attacking a nation outside the context of war and absent an identifiable threat. To understand the problem and negotiate a reasonable solution, Adams visited the office of Tripoli’s envoy to Great Britain in London, who welcomed him with great hospitality. When the Tripolitan ambassador, Sidi Haji Abdrahaman, returned the visit a few days later, Adams perceived him as “a benevolent and wise man” with whom the United States could conduct business.

Sharing his positive perceptions and plans to broker an arrangement with Abdrahaman for safe passage of U.S. merchant ships, Adams invited Jefferson to join him in negotiations. Much to their mutual surprise, Abdrahaman unreasonably demanded exorbitant sums of gold for himself and informed the statesmen that additional sums would be required to buy peace with Tunis, Morocco, and Algeria.

Both Adams and Jefferson registered astonishment at the excessive tribute amounts and inquired how the Barbary States could justify “[making] war upon nations who had done them no injury.” The Tripolitan ambassador declared that “all nations which [have] not acknowledged the Prophet were sinners, whom it was the right and duty of the faithful to plunder and enslave.” Kilmeade and Yaeger describe the two founders as being “horrified by the [envoy’s] religious justification for greed and cruelty.” Exhibiting no remorse or regret, the Tripolitan further explained that “every mussulman who was slain in warfare was sure to go to paradise.”

Interestingly, Jefferson had read the Koran while in law school, been perplexed by its values, and dismissively relegated a spot for the Muslim holy book next to his collection of Greek mythology. Kilmeade and Yaeger point out the irony of Jefferson, author of “all men are endowed by their Creator with certain unalienable rights,” being confronted by the stark reality of Islamic doctrine.

“Corrupt motive” is an extraordinarily vague and open-ended term that can be expanded or contracted at the whim of zealous or politically motivated prosecutors. It is bad enough when this accordion-like term is used in the context of economic corruption, but it is far worse – and more dangerous to liberty – when used in the context of political disagreements.

In political cases – especially those not involving money – the act itself is constitutionally protected, and the motive, which is often mixed, is placed on trial. It becomes the sole criteria for turning a constitutionally authorized political act into a felony.

Corrupt motive is in the eye of the beholder, and the beholder’s eyes are often more open to charges of corrupt motives on the part of their political enemies than their political allies.

My academic and political colleagues who insist that President Trump has obstructed justice point to his allegedly “corrupt motive” in firing former FBI Director James Comey after telling him that he “hoped” he would end his investigation of General Michael Flynn. They concede – as Comey himself did – that the President has the constitutional authority to fire the director and to order him to end (or start) any investigation, just as he has the authority to pardon anyone being investigated. But they argue that these constitutionally authorized innocent acts become criminal if the President was “corruptly motivated.”

This is a dangerous argument that no civil libertarian should be pressing. Nor would they be pressing it if the shoe were on the other foot. If Hillary Clinton had been elected and Republicans were investigating her for asking the Attorney General to describe the investigation of her as a “matter” rather than a “case,” my colleagues would be arguing against an expansive view of existing criminal statutes, as they did when Republicans were demanding that she be locked up for espionage. The same would be true if Bill Clinton or former Attorney General Loretta Lynch were being investigated for his visit to her when she was investigating his wife’s misuse of email servers.

“Corrupt motive” is an extraordinarily vague and open-ended term that can be expanded or contracted at the whim of zealous or politically motivated prosecutors. It is bad enough when this accordion-like term is used in the context of economic corruption, but it is far worse – and more dangerous to liberty – when used in the context of political disagreements. In commercial cases where corrupt intent may be an element, the act itself is generally not constitutionally protected. It often involves a grey area financial transaction. But in political cases – especially those not involving money – the act itself is constitutionally protected, and the motive, which is often mixed, is placed on trial. It becomes the sole criteria for turning a constitutionally authorized political act into a felony.

What do you do after being held in contempt of Congress in two separate presidential administrations while having the blood of police officers, a border patrol agent and more young black men than you can count?

You run for president.

More than two years after leaving the Obama administration, former Attorney General Eric Holder is reentering the political fray.

His goal: to lead the legal resistance to Donald Trump’s agenda — and perhaps even run against the president in 2020.

If every drug dealer and gang member in America voted, President Holder would be a reality.

“Up to now, I have been more behind-the-scenes,” Holder told Yahoo News in an exclusive interview about his plans. “But that’s about to change. I have a certain status as the former attorney general. A certain familiarity as the first African-American attorney general. There’s a justified perception that I’m close to President Obama. So I want to use whatever skills I have, whatever notoriety I have, to be effective in opposing things that are, at the end of the day, just bad for the country.

And he’s humble and modest too. As a man who belongs in prison ought to be.

Holder has a “certain status” and a “certain familiarity”. There’s a “justified perception” that he has regular beers summits with his former boss who now controls the party.

Open question. Did Holder actually mean notoriety or is he illiterate?

But the most intriguing — and perhaps most consequential — aspect of Holder’s ambitious new effort is a scheme, still in its early stages, to create a national, privately funded, PAC-like organization that would develop and coordinate legal resistance strategies among various states and localities that are determined to stymie Trump.

For now, Holder will continue to set the stage in California. (Earlier this month, the state Assembly decided not to renew his $25,000-a-month contract; the state Senate, however, plans to retain his services indefinitely.)

The “Resistance” will be brought to you by the slimy trail of left-wing cash.