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Dems to Kavanaugh: If we lose, you must recuse … on Mueller

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Senate Democrats signaled yesterday that Brett Kavanaugh should prepare for the kitchen-sink treatment with a ridiculous demand for a recusal. Earlier, some Democrats had seized on an article written by Kavanaugh arguing that Congress should pass a law to grant limited immunity from prosecutors to sitting presidents, thanks to lessons learned from Kavanaugh’s time on Ken Starr’s Whitewater investigation. Now, at least two members of the Senate Judiciary Committee say they will demand that Kavanaugh pledge to recuse himself from all matters connection to Robert Mueller’s investigation:

Democrats on the Senate Judiciary Committee said Tuesday they intend to ask Brett Kavanaugh to step aside from any future cases involving Robert Mueller’s investigation of President Donald Trump if he’s confirmed to the Supreme Court.

The recusal requests stem in large part from a 2009 law review article that Kavanaugh wrote suggesting that Congress take up legislation “exempting a president — while in office — from criminal prosecution and investigation.” Given that the Supreme Court ultimately could rule on several high-profile issues related to the special counsel’s investigation of Trump’s ties to Russia, Democrats will press Kavanaugh to commit to stepping aside.

“I don’t think he should be on the court, and you can be sure that me and my colleagues on the Democratic side are going to be asking if he will recuse himself, should he be confirmed,” Sen. Cory Booker (D-N.J.), considered a potential Trump challenger in 2020, told reporters.

Sen. Richard Blumenthal (D-Conn.), another member of the Judiciary panel, agreed that Kavanaugh should recuse himself from any cases “that involve President Trump’s personal financial dealings or the special counsel.”

Chuck Schumer went even further, accusing Kavanaugh of being the candidate Trump though “would best protect him from the Mueller investigation.” There are only two problems with this argument: Kavanaugh didn’t argue that the courts had any role in the question, and there is no conflict of interest.

Let’s start with the law-review article from 2009, written long after the Starr investigation wrapped up and the impeachment of Bill Clinton took place. Kavanaugh noted that the impeachment actually got prompted by a civil lawsuit rather than a criminal investigation, and called into question whether presidents should be subject to the potential for legal harassment. In the absence of statute to the contrary, the courts correctly allowed Paula Jones’ lawsuit to proceed, Kavanaugh argued. But, Kavanaugh continued, that should have prompted Congress to act:

With that in mind, it would be appropriate for Congress to enact a statute providing that any personal civil suits against presidents, like certain members of the military, be deferred while the President is in office. The result the Supreme Court reached in Clinton v. Jones — that presidents are not constitutionally entitled to deferral of civil suits — may well have been entirely correct; that is beyond the scope of this inquiry. But the Court in Jones stated that Congress is free to provide a temporary deferral of civil suits while the President is in office. Congress may be wise to do so, just as it has done for certain members of the military. Deferral would allow the President to focus on the vital duties he was elected to perform.

Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President. In particular, Congress might consider a law exempting a President — while in office — from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, ‘no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated — whether in favor of the President or against him, depending on the individual leading the investigation and its results.’ The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.

Democrats want to argue that this indicates that a Supreme Court Justice Brett Kavanaugh would shut down a special counsel prosecution, but that’s not what Kavanaugh wrote. He instead argued that Congress should provide that immunity, and that absent such action, the courts would have to allow those lawsuits and prosecutions to proceed. It’s a deliberate misreading for which the Washington Post fact-checking team awards two Pinocchios, bordering on three:

Noah Feldman, a Harvard Law School professor, wrote that Kavanaugh might be saying “the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t.” (Emphasis ours.)

Feldman wrote that “from a legal and constitutional perspective, Kavanaugh wasn’t saying that the courts should find that the president shouldn’t be investigated or indicted.” “To the contrary,” he wrote. “He was saying that Congress should pass a law ensuring that result, because without it, the president was open to being investigated — and maybe even indicted.” …

Kavanaugh’s articles from 1998 and 2009 are no smoking-gun evidence that he would vote to dismiss an indictment against Trump, should one ever be filed. Although he clearly believes it’s a bad idea to indict a sitting president, Kavanaugh never states his view whether the Constitution allows it. In fact, he says Congress should pass legislation to ensure the president is immune from civil and criminal proceedings while in office. As Feldman writes, Kavanaugh’s 2009 article can be read as a signal that he might uphold a presidential indictment unless Congress changes the law.

We don’t mean to split hairs by analyzing whether Kavanaugh believes something “can’t” or “shouldn’t” happen, but in the legal arena, this distinction matters. Kavanaugh’s stated views on this question don’t go as far as Fallon, Maloney and Ocasio-Cortez claimed. Their tweets merit Two Pinocchios, although we considered giving Three. To say Kavanaugh is Trump’s “get-out-of-jail free card” is an extreme distortion of what he’s written.

 With that in mind, let’s turn to the bad case of Recusal Fever that afflicts Senate Democrats. Judicial recusals are rare, especially at the Supreme Court, and always involve a specific and clear conflict of interest. Elena Kagan had to recuse herself from several cases in her first couple of years because of her work on them as a member of the Obama administration. Cases in which a justice has a financial interest could trigger a recusal. In all cases involving Supreme Court justices, it’s up to the individual justice as to whether a conflict of interest rises to the level of recusal as balanced against the interest of the American public in having all nine justices working on the important issues that reach that court.

None of that applies to Kavanaugh in this instance. He has done no work on the Mueller investigation, nor did he do any work for Donald Trump either before, during, or after the campaign. Democrats are ginning up a connection to Mueller in an attempt to smear Kavanaugh, in part by deliberately distorting Kavanaugh’s advice to Congress on the potential for limited presidential immunity, six years before Trump ever decided to run for office.

The only recusals needed here are those by Booker, Blumenthal, Schumer, and anyone else who peddles this noxious nonsense.

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Wait… so now we’re not declassifying the Carter Page FISA docs?

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On Thursday we were discussing the pending declassification and release of various FISA documents, text messages and FBI notes pertaining to the investigation of Carter Page. At the time I noted that every Democrat in the Gang of Eight was up in arms and demanding some sort of delay so they could review the situation. It didn’t seem as if those protests were going to carry much weight since, in the end, it’s up to the President and his intelligence advisers to determine what material is or isn’t classified. And given Trump’s history of, shall we say… determination on such matters, it sounded like a done deal.

Goes to show how much I know, huh? On Friday, the President turned around and put on the brakes, citing a variety of reasons for further review being required. (Boston Globe)

In a rare retreat, President Trump on Friday reversed himself and said he was no longer demanding that documents related to the Russia investigation be immediately declassified and released to the public.

Taking to Twitter on Friday morning, Trump said that instead of an immediate release, Justice Department officials would review the documents, adding that “in the end I can always declassify if it proves necessary.”

“I met with the DOJ concerning the declassification of various UNREDACTED documents. They agreed to release them but stated that so doing may have a perceived negative impact on the Russia probe. Also, key Allies’ called to ask not to release,” Trump wrote. “Therefore, the Inspector General has been asked to review these documents on an expedited basis. I believe he will move quickly on this (and hopefully other things which he is looking at). In the end I can always declassify if it proves necessary. Speed is very important to me — and everyone!”

So what happened in the past 48 hours to change the President’s mind or at least slow him down? I think we can rule out any concerns about a “perceived negative impact on the Russia probe.” In fact, that one is just laughable. If anything, a negative impact on the Russia investigation would probably just speed the documents out the door. Nobody seems to have much insight on this yet, but let’s just put out a couple guesses, shall we?

One possibility might be that Trump’s finally had a look at the documents himself and doesn’t find them as helpful as he’d been told. Keep in mind that as recently as Tuesday the President admitted he hadn’t even read them himself. He’s been taking the word of senior members like Devin Nunes, who really want those documents out in the public’s eye. If Trump’s legal team looked them over and found them less than helpful (or potentially even hurting his cause?) he might want to slow this train down.

Alternatively, I suppose it’s possible that some foreign allies weighed in and begged him to keep a lid on it. But who? Theresa May? Macron? Is there any way that their governments had their fingers in the pie when the Steele dossier was being shopped around and they don’t want that connection exposed? But since when has Donald Trump worried overly much about stepping on the toes of foreign leaders? Anything’s possible I suppose, but that line doesn’t sound very realistic.

Trump is leaving himself the option of releasing them “later” but that’s not usually his style. If he was ready to go with the disclosure and then put the whole operation on hold overnight, I’m willing to bet there’s something in there which wouldn’t play in his favor. And if that’s the case, “later” may turn out to be never.

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Christine Blasey Ford Hires Andrew McCabe Lawyer Who Was Iran Contra Assoc. Counsel

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The Deep State  push to block the Supreme Court nomination of Judge Brett Kavanaugh just got reinforcements with the hiring by accuser Dr. Christine Blasey Ford of  Michael Bromwich, a lawyer representing fired FBI Deputy Director Andrew McCabe and whose work in Washington goes back to the Iran Contra investigation where he served as Associate Counsel and prosecuted Oliver North. Bromwich also heads a consulting firm that specializes in crisis and government investigation communications.

Bromwich will be joining Blasey Ford’s current attorneys on the case, Debra Katz and Lisa Banks.

Michael R. Bromwich, image via Twitter avatar.

CNN Justice Department reporter Laura Jarrett, the daughter of Obama confidante Valerie Jarrett, broke the news Saturday afternoon on Twitter, “News – former DOJ inspector general Michael Bromwich has joined Christine Blasey Ford’s legal team. (Note he also represents former FBI Deputy Director Andrew McCabe). He has just resigned from his law firm effective immediately in light of objections within the partnership.” (Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP)

Jarrett added an image of Bromwich’s statement.


McCabe spokeswoman Melissa Schwartz confirmed the news, “This is true. We are proud to be new members of Team Ford cc:

Bromwich added, “I’m honored to be joining Debra Katz and Lisa Banks in representing Dr. Ford”

Schwartz is COO of the Bromwich Group, a consulting firm founded by Bromwich in 2012. Schwartz’s about page details some of her work for the Bromwich Group’s clients:

 

  • Provided strategic and tactical advice in the face of adverse media coverage;

  • Served as spokesperson for clients dealing with regulatory and congressional investigations;

  • Developed comprehensive communications plans, messaging and materials for large-scale communications initiatives;

  • Built and implemented media, internal, external and online communication and outreach strategies to tell a client’s story and shape public perception of the organization;

  • Created diverse media strategies to complement litigation settlements; and

  • Organized and directed media relations in connection with events.

Bromwich’s Twitter bio reads, “former DOJ IG; Asst US Attorney, SDNY; Assoc. Independent Counsel: Iran-Contra; independent monitor x 4; law enforcement consultant; lifelong Dodgers/Lakers fan” His about page at the Bromwich Group goes into greater detail.

Excerpt:

…Over the course of a career that has spanned more than 35 years, Mr. Bromwich has tackled a variety of challenging assignments. He has been a federal prosecutor, a special prosecutor, an inspector general, the country’s top offshore drilling regulator, the compliance monitor of major public companies and public agencies, and a lawyer who has practiced with some of the most widely-respected law firms in the country. He has been called on countless times – by public corporations, private companies, federal, state, and local governments, cabinet secretaries, and the President of the United States – to deal with issues and problems of the greatest private and public significance. “…

Blasey Ford has agreed to testify before the Senate Judiciary Committee this week, but her lawyers are still negotiating such details as which day.

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New Cruz ad: Can you believe O’Rourke is siding with the guy who got shot by a cop in his own home for no reason?

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He’s getting creamed for this, justifiably, and not only by liberals. The best part is the presented-without-comment framing, as though O’Rourke had been caught denying the Holocaust or saying something so similarly outlandish that no explanation is needed for why it should offend you.

This is the second time he’s gone after the Democrat over the Botham Jean shooting, one of the most bananas cases of lethal force by a cop you’ll ever encounter. You probably know the facts by now but in case not: A white Dallas police officer came home after a 15-hour shift at work, found the door to her apartment slightly ajar, walked in and saw a man standing in the darkness. Thinking he was a burglar, she pulled her pistol, gave him “verbal commands” to freeze, then fired when he didn’t comply. He died. When she turned on the lights she realized it wasn’t her apartment at all; she had entered the unit directly above her own, which had an identical layout. The “burglar,” a black man, was in his own home, not hers.

This is the cop’s own version of events, let me stress. Neighbors claim they heard a woman yelling “let me in” before the shots were fired and there’s reason to believe that all doors in their apartment complex shut automatically, eliminating the possibility that the cop arrived to find “her” door open a crack such that she could breeze in without meeting resistance from the lock. Even the cop doesn’t claim that the victim, Botham Jean, was doing anything wrong. The narrative that’s *most* favorable to her, her own self-serving account, is that she strolled into another person’s home and ended up blowing him away, falsely believing she was in her own pad and that he was there committing some sort of crime. She’s been charged with manslaughter but the charges may be increased to murder.

And the kicker, as O’Rourke notes in the clip, is that somehow the fact that the dead man had marijuana in his apartment was leaked afterward to the media even though it had nothing to do with the incident. I wrote about that 10 days ago, struck by the fact that left and right seemed to react to the leak the same way. There was bipartisan outrage that a person who’d been gunned down in his own home was now being smeared postmortem as a criminal, apparently to try to make the cop’s actions — which were based on a horrendous misjudgment by her own admission — seem reasonable-ish.

So which part of what O’Rourke said is so outrageous that Cruz thought it would work as-is as an attack ad for his own campaign? What’s the message here? Two possibilities:

1. Anyone who’d take sides against a cop in a shooting, irrespective of the facts, is anti-cop.
2. Anyone who’d take sides against a white cop in the shooting of a black victim, irrespective of the facts, is anti-white.

That’s a very Trump-y message. (Some critics wondered whether it’s a coincidence that the video of O’Rourke that Cruz chose for his ad just happens to involve a cheering black audience, per point two.) A “constitutional conservative” who’s naturally skeptical of state power, which is how Cruz sold himself throughout the tea-party era and beyond, shouldn’t naturally gravitate to white identity politics and mindless respect for armed authority in analyzing a case in which an agent of the state killed an innocent man for no good reason. But this is how Republican politics operates in the Trump era, or at least how Cruz thinks it operates. That’s also why he’s been hammering O’Rourke for defending the NFL players who kneel during the anthem to protest police brutality. Same underlying themes as in this new ad: Blacks are complaining about how they’re being treated by bad white cops and the Democratic candidate sure is eager to side with them. He’s not “one of us.” Which leaves the question hanging in the air: Who’s the “us” he’s talking about? In the NFL example you could say it’s people who respect the flag and the national anthem. Who’s the “us” in this new ad that O’Rourke is supposedly against, though?

Bear in mind that a white cop was convicted of murder in the Dallas area for killing an unarmed black teen just within the past month. Inspired by that and the Botham Jean case, David French wrote recently about how his own view of police shootings has changed over time. He too used to approach it as an “us vs. them” issue, with the cops on one side and the Bad People on the other. It isn’t.

Truth be told, the way I covered this issue in 2015 and much of 2016 shed more heat than light. Here’s what I did. I looked at the riots in Ferguson, Milwaukee, Baltimore, and Charlotte, the extremism of the formal Black Lives Matter organization (which referred to convicted cop-killers as “brothers” and “mama” and said its explicit goal was to “disrupt the western-prescribed nuclear family structure”), and the continued use of debunked claims, including “hands up, don’t shoot,” and I focused on these excesses largely to the exclusion of everything else.

Yes, I used all the proper “to be sure” language — there are some racist cops, not every shooting is justified, etc. — but my work in its totality minimized the vital quest for individual justice, the evidence that does exist of systematic racial bias, and I failed to seriously consider the very real problems that contribute to the sheer number of police killings in the U.S.

To put it bluntly, when I look back at my older writings, I see them as contributing more to a particular partisan narrative than to a tough, clear-eyed search for truth.

That’s the most charitable possibility for what Cruz is after here. The standard “partisan narrative” when a cop shoots an unnamed man is that the left sides with the victim and the right sides with authority. The new ad is merely another way, however cloddish, of signaling to Texas’s Republican majority how left-wing O’Rourke is. Look, he’s pushing the message that Team Blue typically pushes, not the one that Team Red does! He’s not one of us. Which really only circles you back to French’s point: Why should we require someone to defend a cop in every circumstance to qualify as “one of us,” including and especially a case where the cop herself admits she screwed up?

It’s commonly accepted (including by me) that Cruz isn’t really in danger of losing the Texas race. O’Rourke’s giving him a scare and no doubt the final margin will be tighter than most elections in Texas usually are, but Democrats simply don’t have the numbers to pull this off. If that’s so, though, why would Cruz stoop to this? Why take an innocent dead man and use O’Rourke’s justifiable outrage on his behalf and use it as some lowest-common-denominator Trumpian play on race and authority a la Trump’s infamous newspaper ad back in the day about the Central Park Five? It’s no sure thing that populist Republicans will respond well to this ad; like I said up top, they jeered the attempt to smear Jean after his death by leaking that he had weed in his apartment. But it’s unquestionably true that Cruz believes populist Republicans will respond well to it. Who does he think his base is at this point? What lessons did he take about the Republican electorate from his destruction at Trump’s hands in 2016?

My suspicion is that Cruz took the presented-without-comment approach to what O’Rourke said not because he felt it was so outrageous that it didn’t require further comment but rather the opposite. He couldn’t mount a good-faith argument against it but he knows, or believes, that many righties will find something offensive in it — “Beto hates cops,” “Beto hates whites” — so he’s running it up the flagpole for those people to salute. Am I giving him too much credit in suspecting that or not enough?

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