Category Archives: Rule of Law

A post in which you can talk about Gen. Mattis

gen_james_n_mattis

Bryan Caskey complains via email, “We gonna talk foreign policy and military stuff on your blog about Mattis, or what?”

Alright, alright, already! Here’s a post about that. And here’s a story about Mattis.

Frankly, I don’t have a strong opinion on this nomination, but here are some thoughts:

  • With a complete ignoramus as commander in chief, it’s more important than ever that there be competent Cabinet members, who can keep the ship of state on some kind of rational course, at least when the White House leaves them alone to do so. This is particularly true on the national security team. And Trump’s decision to make Gen. Michael “Lock Her Up!” Flynn his national security adviser already has us in the hole on that score.
  • Mattis would seem to fit that bill. He’s a guy whose resume demonstrates that he would fully understand the missions of the Defense Department and act accordingly.
  • Then there’s the problem that Congress would have to grant an exemption that it has not granted until it did so for George C. Marshall. The law they’d have to waive arises from concerns about maintaining civilian control of the military. As y’all know, I’m not one of these post-Vietnam liberals who hyperventilate at the sight of a military uniform, fearing a real-life “Seven Days in May.” The Constitution sets the president as commander in chief, and that would seem sufficient. Well, it would under normal circumstances. Having a SecDef who is a recent general and is able to think rings around the president on military matters and foreign affairs could be a cause of concern on the fussy point of civilian control — but I personally would sleep better if I knew Mattis was calling the shots rather than the president-elect.
  • Mattis is far less trusting of Iran than President Obama. I think that is probably a healthy thing, but as Bryan would say, and this post is after all for Bryan, your mileage may vary.
  • I think it’s a very good thing that he has differed in the past from Trump on the idea of our allies getting a “free ride” on the back of U.S. power. He argued with a similar comment from President Obama once.
  • My guys John McCain and Lindsey Graham are on board, which makes me like him better. Graham finds him “an outstanding choice,” and McCain says “He is without a doubt of one of finest military officers of his generation and an extraordinary leader who inspires a rare and special admiration of his troops.”

Your thoughts?

Another of the many basic things Trump has never thought about

realdonald

Trump voters wanted an outsider, but I doubt that they, or I, or anyone yet fully grasps just how out-of-the-loop this guy is.

I think I have a pretty good idea, based on the last year and a half. I’ve long known enough to see that — if you see the same things — you’d have to be stark, raving mad to want to put this guy anywhere near the Oval Office. But look what’s happened.

So, each day will bring us face-to-face with yet another thing that demonstrate that Donald Trump has never spent a moment of his garish life thinking about things that are second nature to people who — regardless of party or philosophy — possess the most basic qualifications to be president.

Sometimes it’s something small — but telling — such as this:

Now here’s a place where my own gut feelings are the same as those of our president-elect. The idea of someone showing such hatred and contempt toward the flag that our bravest Americans have given their lives to defend, and to raise over such places as, say, Iwo Jima — a flag that symbolizes the noble ideas upon which our nation was founded — is profoundly offensive, even obscene. I have utter contempt for anyone who would even consider such a thing.

But I wouldn’t use the power of the state to punish someone for it, certainly not to the extent of loss of citizenship, or a year of imprisonment. You might have me going for a moment on something such as writing the protester a ticket, but ultimately I’d even have to reject that. Why? Because of those very ideas that the flag stands for. If burning the flag causes a person to be burned or causes some other harm, then you have a crime. But if the expression itself is punishable, then it doesn’t matter whether the flag is burned because it doesn’t stand for anything.

(This is related to my opposition to “hate crimes,” one of the few areas where I agree with libertarians. Punish the crime — the assault, the murder, the arson, whatever the criminal did — not the political ideas behind it, however offensive.)

People who have their being in the realm of political expression have usually thought this through. And true, even people who have thought about it may disagree with my conclusion, wrong as they may be. Still others cynically manipulate the feelings of millions of well-meaning voters who haven’t thought the issue through themselves.

But I don’t think that’s the case with Trump. I think he’s just never really wrestled with this or thousands of other questions that bear upon civic life, so he goes with his gut, which as I admitted above is much the same as my own on this question. He engages it on the level of the loudmouth at the end of the bar: I’ll tell ya ONE damn’ thing… 

In a time not at all long ago — remember, Twitter didn’t exist before 2006 — we wouldn’t know this as readily as we do now. Sure, a political leader might go rogue during a speech, or get tripped up on an unexpected question during a press conference. But normally, the smart people surrounding a president would take something the president wanted to say and massage and process and shape it before handing it to a press secretary to drop into the daily briefing.

Now, the president-elect — or Joe Blow down the street — can have a gut feeling and without even fully processing the thought himself, immediately share it with the entire planet. As this president-elect does, often.

That’s a separate problem, of course, from the basic cluelessness of this president-elect. Not only does he not know a lot that he should, he has the impulse and the means to share that lack of knowledge and reflection with the world, instantly.

Quite a few people in public life haven’t figured out social media. They don’t understand something that editors know from long experience — that you have to be very careful about what you publish. (And yes, posting a random thought on Twitter does constitute publication.) Our governor, soon to be our U.N. ambassador, had a terrible time learning that, although to her credit she hasn’t done anything notably foolish on Facebook in a while.

As Aaron Blake writes on The Fix, it might be nice to think we could ignore these outbursts:

For the second time in two weekends, President-elect Donald Trump stirred controversy, bigly, using only his thumbs.

With a trio of tweets Sunday alleging millions of fraudulent votes and “serious” fraud in three states, Trump effectively hijacked the news cycle for the next 24 hours with baseless conspiracy theories. A week prior, it was Trump’s tweets demanding an apology from the cast of “Hamilton” for disrespecting Vice President-elect Mike Pence, who was in the audience the previous night.

It can all feel pretty small and sideshow-y at times. Some have a prescription: The media should resist the urge to cover Trump’s tweets as big news. Others even say we should ignore them altogether….

But we can’t. In the months and years to some — assuming no one gets control of him, and I doubt anyone will — we must treat them as seriously as if the president strode into the White House Press Room and made a formal announcement.

This is what we’ve come to. Our window into the mind of the most powerful man in the world will to a great extent be these spasmodic eruptions onto a tiny keyboard.

We might as well brace ourselves…

Is Graham trying to out-Trump Trump on Clinton?

graham-clinton

I thought this was an odd response from Lindsey Graham to the news that Trump was dropping the idea of prosecuting Hillary Clinton:

On Reports President-elect Trump Will Not Pursue Clinton Investigation:

“Well so much for ‘Locking Her Up’ I guess. The bottom line is that I think the Clinton Foundation, the whole mess, should be looked at with an independent view, not a political agenda. I never believed Obama’s Justice Department would seriously look at what she may have done. I can understand wanting to put the election behind us and heal the nation, but I do hope all the things President-elect Trump said about how crooked she was – well, we just don’t let it go without some serious effort to see if the law was truly violated.  I think that would be a mistake.”

I find it odd for several reasons, including:

  • Graham is not a guy who has been shy about holding Trump accountable, as demonstrated anew with his comments after the president-elect chatted with his would-be buddy Putin.
  • Possibly the most egregious moment in the campaign was when Trump threatened — in a nationally televised, live debate — to turn the United States into a banana republic by locking up his political opposition.
  • Graham is a big advocate for the rule of law, and an intelligent politician, and I can’t believe that he doesn’t see it would be impossible for Trump to pursue a prosecution against Hillary Clinton after having said what he said and have that be seen as anything other than abuse of power.
  • He certainly understands that any prosecutorial moves on her would be a judgment call — it’s not like she clearly and with malice aforethought went out a committed a major crime, something that couldn’t be overlooked no matter the political and constitutional ramifications.
  • Graham isn’t one of these guys with a 20-plus-year record of Clinton Derangement Syndrome. He got along pretty well with her when she served in the Senate, so it’s out of character for him to express reluctance to let go of this bone.

All of that adds up to it being weird for him to go “Are you sure you want to do that?” when Trump, of all people, is willing to let it go — possibly at the price of loss of favor among a lot of the folks who voted for him.

Oh, and as long as I’ve got you, I should share the other topic he addressed — Jeff Sessions. Here’s a quote, and it’s all on the video below, two-and-a-half minutes in:

On the Nomination of Jeff Sessions to be Attorney General:

“I’ve known Jeff for twenty years. I think he’s a principled conservative. I’ll have some questions for him before the Judiciary Committee. These attacks on his personal character, about him being some kind of closet racist or what he may have said thirty or forty years ago is complete garbage. Jeff Sessions is one of the finest people I have ever known. I don’t think there is a hateful bone in his body. We have some policy differences so I’ll be glad to challenge Jeff where we disagree, but support him in terms of him being a good, decent man. And to my Democratic colleagues, you better watch what you do here.”

Refreshing my memory about the Electoral College

rs-243008-lin

Never mind all the paintings you’ve seen; most photographs of “Hamilton” found via Google look like this.

In a comment earlier today, I sought to excuse myself from any errors in memory by confessing that I hadn’t read all of the Federalist Papers in decades.

Realizing that was lame, I decided that I should at least go back and read the one that addressed the subject at hand, the Electoral College. That’s Federalist No. 68, probably by Hamilton.

I must say, there was little mentioned about the importance of having the president chosen by states rather than masses of people, beyond oblique references such as these:

And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place….

Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States….

But such commentary is hardly necessary since the Constitution itself makes it perfectly clear that the president is to be chosen by electors who are themselves chosen by states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

So there.

Of course, there is a good deal to suggest that Hamilton thought it proper that the method of selection defer to “the sense of the people,” not least the fact that the House would be the body to decide if a clear winner did not emerge from the electors’ deliberation.

Note that the idea that there should be deliberation, and not an up-or-down vote of the people, was crystal-clear:

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations….

Also, remember yesterday when I suggested that “It would be nice for it to be an actual COLLEGE, in which people study year after year our nation’s history and political science, so that they are completely infused with the kind of knowledge that Donald Trump utterly lacks?”

Hamilton would have hated that idea, apparently. He thought the temporary nature of the college — assembled ad hoc, for the immediate task of electing a president once — was one of the system’s great virtues. Of the Framers, he wrote:

They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it….

The context of that, by the way, was in part to guard against this danger:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention….

Vladimir Putin might get a good chuckle out of that. But on the other hand, every foreign government except those of Russia and China preferred Hillary Clinton. Still, can the mechanism be said to work when the desires of our allies are thwarted, and the preferences of our adversaries granted?

If you haven’t wept for your country yet after last week, consider this hope of Hamilton’s:

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications…. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. … we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration….

Riiiight…

The final irony is that, while today the College is perhaps the most reviled part of the Constitution, at the time Hamilton saw it as hardly needing defending, since it was one of the few parts not being heavily criticized:

THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded. [1] I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for….

What a difference a couple of centuries make…

Did Comey just do MORE harm to Clinton (and the country)?

I like this screenshot, because among other things it shows you just how little time is left before voting as this story breaks.

I like this screenshot, because among other things it shows you just how little time was left before voting.

So did James Comey on Sunday lift the cloud that was hurting Hillary Clinton’s chances to win the election Tuesday?

I suspect not. In fact, he may have done more harm than good. Why? Because I think she gets hurt every time her emails get mentioned, period.

Everyone recalls his big announcement over the summer when he said the FBI had found nothing worth filing charges over. But I also recall what happened a couple of days before that, on the Saturday that the FBI had one last interview with Sec. Clinton before Comey’s announcement.

The effect was, to me, quite weird. Word of the interview came on Saturday, July 2. I remember marveling at all the bulletins I was getting about it on my phone. The reaction seemed excessive, since we knew nothing except that she had been interviewed. I wondered even more when news analysis over the next couple of days was all about how this new hurt her campaign. The Washington Post‘s take at the time:

Hillary Clinton’s weekend interview with the FBI stands as a perfect symbol of what is probably her biggest liability heading into the fall election: A lot of people say they don’t trust her.

Clinton sat for an interview of more than three hours as part of a Justice Department investigation into the privately owned email system she operated off the books when she was secretary of state. The timing — less than three weeks before she will claim the Democratic presidential nomination — is an attempt to make the best of a situation that would look bad for any candidate but is particularly damaging for Clinton.

That the interview at FBI headquarters was voluntary does not expunge the whiff of suspicion surrounding the entire email affair that, for many voters, confirms a long-held view that Clinton shades the truth or plays by her own rules….

I thought that rather weird at the time. Then, of course, on July 5 — mere seconds after I had posted about how odd it was, Comey had his long “no charges” presser. Which sorta kinda relieved a lot of Democrats (he had a lot of critical things to say, too) and infuriated Republicans.

Fast-forward to Comey’s announcement 10 days ago that the FBI was looking at some more emails. Enormous damage was done to the Clinton candidacy, with her dropping in polls, infuriating Democrats and cheering up Trump supporters. And yet — think about this — there was no substance whatsoever in the announcement. There was no indication that there would be anything in the new emails that would reflect badly on the former secretary.

But was, undeniably, bad for her nevertheless.

My theory is this: We long ago passed a point at which any sentence that contains “Hillary Clinton” and “emails” is, in the collective mind of the electorate, a bad thing. And with good reason — she shouldn’t have set up the private server to begin with.

But it’s also a sort of mushy bad thing, without clear lines demarcating “good” and “bad,” so that even if the full sentence is “Hillary Clinton’s emails contain nothing incriminating,” the less detail-oriented parts of our brains still go “bad” at hearing the first three words together.

So it is that her candidacy was harmed when Comey brought up the words again 10 days ago, even without any information letting us know whether the news was indeed bad.

And, I suspect, it was harmed again yesterday when Comey essentially said, “There’s still nothing incriminating in Hillary Clinton’s emails.” As far as the political effect is concerned, we all heard only the last three words.

Here’s what I mean: I doubt the news tipped many people from planning to vote for Trump to planning to vote for Clinton. Or even from staying home, or voting third-party, to voting for Clinton.

But it once again infuriated the Republican base — including, I suspect, a lot of Republicans who were reluctant to vote for Trump, but who now are freshly reminded of how much they despise Hillary Clinton. They were kind of coasting along there experiencing various degrees of satisfaction from 10 days ago, and then BAM! — they’re outraged. Which can’t be good for her.

Please tell me I’m wrong…

 

What IS the deal with Comey?

This business of the FBI director’s letter last week has a lot of puzzling aspects that we could discuss.

james-comey

Comey’s official FBI portrait. I almost don’t recognize him, smiling.

I almost did a post yesterday based on a couple of headlines out there, one of which was this: “Did FBI Director James Comey’s Email Announcement Break The Law?” To that, I could only say, Who cares? What if it did? Sure he could be prosecuted, fined, jailed, whatever — it wouldn’t affect what he has done to this election, whatever that is. The damage can’t be undone. If his actions result in the election of Donald Trump as president of the United States, keelhauling him might make a lot of us feel avenged, but it wouldn’t save the country.

Another headline — which I can’t seem to find now — said he may have a report on what is found in the new emails before the election. To which I could only say, whoop-te-frickin’-do. When would that be? Election eve? So if the news is detrimental to Hillary Clinton, or merely leaves a cloud over her, that could be the finishing stroke. And if it clears her of any further culpability, Republicans will charge to the polls in a fine lather, willing even to vote for Trump to express their ire.

There’s a lot more this morning. I was intrigued by an interview I heard on public radio this morning with Donald Ayer, deputy U.S. attorney general under Presidents Ronald Reagan and George H.W. Bush between 1989 and 1990. He made a fascinating point. He said that when Comey had his announcement/speech back in the summer, everybody kind of went, OK, so Hillary did some irresponsible stuff, but it didn’t rise to the level of being prosecutable. Republicans were outraged and Democrats relieved, but everyone went on with their lives.

And, Mr. Ayer said, no one stopped to think just how wildly inappropriate it was for someone with prosecutorial power to make a lengthy speech about the merits of a case he was deciding not to prosecute.

Anyway, the point was that that error set up this one. Having told Congress and tout le monde that he was done investigating and there was nothing to prosecute, he felt honor-bound to say last week, Uh, fellas, I found something else we need to take a look at….

(Being bound by honor is a very fine thing and all too rare these days. But I confess I’m on the verge of losing patience with Mr. Comey’s delicate sensibilities…)

So now we have this situation in which everybody’s mad at him — Democrats for possibly throwing the election to Trump, and Republicans for not telling us all right now just how much these emails damn Hillary.

Here’s another interesting wrinkle: “Comey was concerned publicly blaming Russia for hacks of Democrats could appear too political in run-up to elections.”

Yeah, right? He had his excuses for why he was concerned about the FBI’s purity in that case and not this one (and you should read the story), but still…

Finally… As y’all know, Bret Stephens, deputy editorial page editor of The Wall Street Journal, has written some extraordinary columns lately damning Trump and all-but-endorsing Hillary. Today, he had one simply headlined, “Resign, Mr. Comey.” An excerpt:

These aren’t partisan acts. They are self-regarding ones. Mr. Comey is a familiar Washington type—the putative saint—whose career is a study in reputation management. He went after investment banker Frank Quattrone. He threatened to resign from the Bush administration over its warrantless wiretap program. He vouchsafed the case against Steven J. Hatfill, the virologist accused of the 2001 anthrax mail attacks, in internal White House deliberations. He appointed his close friend Patrick Fitzgerald to investigate the leak of CIA analyst Valerie Plame’s name.

One common thread in these cases is that Mr. Comey was always on the right side of Beltway conventional wisdom. The second is that he was consistently on the wrong side of justice….

FBI directors are supposed to be above politics, not in them. President Obama has the authority to fire Mr. Comey but will be hard-pressed to do so politically. That goes double if Mrs. Clinton is elected. Who knows what a President Trump would do.

All the more reason for Mr. Comey to do the right thing. He has lost the trust of his political masters, his congressional overseers and the American people. Wanting to spend more time with family is the usual excuse.

Mr. Stephens is understandably ticked.

One wonders where Mr. Comey’s conscience will take us next. Although what it’s done so far is quite enough…

 

The NYT, perhaps unsurprisingly, has a lawyer who can WRITE

McCraw

McCraw

You’ve got to read the letter that David E. McCraw, a lawyer for The New York Times, wrote in response to a letter from an attorney for Donald Trump asking the paper to retract an article that featured two women accusing Mr. Trump of touching them inappropriately years ago, and issue an apology.

No, really, you should read it. It’s not the usual legalese that gives you a headache before you get through the first sentence. It’s pretty awesome. It tells home truths, lays down a challenge and dares ’em to come on.

Click here to see the original document. Here’s the full text:

October 13, 2016

VIA ELECTRONIC DELIVERY

Marc E. Kasowitz, Esq.
Kasowitz, Benson, Torres & Friedman LLP
1633 Broadway
New York, NY 10019-6799

Re: Demand for Retraction

Dear Mr. Kasowitz:

I write in response to your letter of October 12, 2016 to Dean Baquet concerning your client Donald Trump, the Republican Party nominee for President of the United States. You write concerning our article “Two Women Say Donald Trump Touched Them Inappropriately” and label the article as “libel per se.” You ask that we “remove it from [our] website, and issue a full and immediate retraction and apology.” We decline to do so.

The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a “piece of ass.” Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.

But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance – indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the women’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.

Sincerely,
David E. McCraw

Well said, sir.

Could we go ahead and adjudicate this now?

The Hamlet routine: to press or not to press (charges)

None of these is actually my mailbox; I just needed art to go with this...

None of these is actually my mailbox; I just needed art to go with this…

Monday morning, my wife asked me if I’d done anything with our mailbox at the house — put anything in, taken anything out, whatever. No, I hadn’t. She said she’d come home mid-morning and found it open. And two pieces of mail she had placed in it Sunday afternoon, both containing checks to pay bills, were missing.

So we speculated that maybe the postal worker had come freakishly early or something — J vaguely recalled having seen the mail truck in the neighborhood on Sunday and wondering what it was doing — and made plans to contact the folks to whom the checks were mailed to make sure they arrived.

Then, a couple of hours later, I got a call from our credit union, with whom we have that checking account. Someone we had never heard of had just been in their Irmo office trying to cash a check from us for $680.42.

One of the checks we were mailing was for $130.42. Think about it.

While I can see how someone made that change, I still don’t know how anyone managed to change what was in the TO space. The check was to Lexington County, to pay a vehicle tax, and the name it had been changed to wasn’t even close.

Anyway, the credit union refused to cash it, the person left with the check, and the teller — who remembered us from when she worked in the West Columbia branch — called me.

So since the thieves have my account number and routing number, I ran over to the main office and had the account closed.

That was just the start. We had to change a couple of direct deposits, and some automatic payments — Netflix and the like. There were the two probably-stolen checks, and an earlier payment that hadn’t gone through, so we’d have to get with all those folks and arrange to pay another way.

Yeah, I know. You’re wondering why we were putting checks into our mailbox. A lot of people have asked that the last couple of days, accompanied by “Didn’t you know…?” No, we didn’t. While everyone and his brother is mentioning it now, no one had ever mentioned it to us before — and we’d gone our entire lives without anything being stolen from our mailbox. To our knowledge.

And like most of you, we don’t send out many checks anymore, usually doing electronic transfers. But that doesn’t always work out. Rest assured, if we send out checks henceforth, we’ll follow Moscow Rules — maybe changing vehicles two or three times on the way to an official U.S. gummint mailbox.

Next step, police reports. We live in the county, so I called the sheriff’s office and gave the details over the phone. Separately — since a separate crime was attempted in that jurisdiction — the credit union contacted the Irmo PD.

Which led to a bit of a dilemma for me.

Tuesday morning, the Irmo policeman who’d taken the report called me to ask whether we wanted to press charges. Not that there was a suspect in custody or anything — the police wanted to know whether they would have a case (whether we would testify that we never wrote a check to the person in question, for instance) before devoting resources to it.

I sympathized. The police need to prioritize, I understand. But being asked this question caused me concern on two fronts, having to do with opinions I’ve long held and expressed:

  • I’m all for looking out for crime victims, but I am adamantly opposed to them making decisions about prosecution. You’ll hear people say that “The victim’s family should decide” whether to pursue the death penalty in murder cases, for instance. That’s an outrageous suggestion in my book. We don’t have police and courts to act as agents of personal vengeance for individuals. Our laws against murder and passing bad checks exist because we, as a society, don’t think people should be allowed to kill other people or steal from them — such things are disruptive to civilization. (This is related to my oft-stated opposition to abortion on demand — to me, it’s a violation of the ideal of a nation of laws and not of men to have the one most interested person on the planet have absolute power over life and death.)
  • As y’all know, I don’t think we need to be locking up people who commit nonviolent crimes. Many if not most of the women in prison, from what I’ve heard in the past, are there for trying to pass bad checks. Don’t know if that’s still true, but that’s what I used to hear.

Add to that the fact that aside from being greatly inconvenienced, I had lost nothing, thanks to the smart actions of the teller who refused to cash the check (I told her supervisor she should get a gold star for that). The credit union wasn’t out anything, either — aside from time spent on this.

So I dithered. I asked the officer if I could call him back, and promised to do so by the end of the day.

I polled people about it, and everyone I talked to said of course you want them to prosecute. Still, I did the Hamlet routine — to press or not to press?

I finally decided that I had no choice, for the simple fact that it wasn’t about us, even though it felt like it. Whoever had stolen the checks, and whoever tried to pass the forged one (which could be more than one person), might do it again. For all I know, the person or people in question might do this all the time.

And that needed to be stopped, if possible. It wasn’t about what had or hadn’t been done to us; it was about protecting the rest of society. If we didn’t follow through, additional crimes might occur. If we didn’t proceed, the social contract would fray a bit more.

You know me — once I had it framed in my mind in communitarian terms, I called the officer and asked him to proceed.

If anything else interesting happens, I’ll keep y’all posted…

By the way, what would y’all have done (I mean, besides not putting the checks in the mailbox to start with)?

The rape suspect cross-examined the victim? REALLY?

Being blind, Lady Justice missed a travesty in one of her courts Tuesday.

Being blind, Lady Justice missed a travesty in one of her courts Tuesday.

I don’t read a whole lot of crime news, because it seldom involves editorial points I want to make.

But this story sort of blew me away today:

Woman sobs on stand under questioning by alleged rapist

A woman wept on the witness stand, at times uncontrollably, as her accused serial home invader and rapist, acting as his own attorney, grilled her about what happened that morning.

Nathan Martinez, 37, confronted his accuser in a Richland County courtroom in steady but accusatory tones, asking the woman if she had in fact really been raped during a March 2014 home invasion in Forest Acres. In her testimony for the prosecution, he said, she had not said anyone kicked or hit her.

“You said that the individual used force,” Martinez charged.

The woman, who now lives out of state with her family, replied, “He used force by putting a gun in my face, by tying me up and threatening to kill me!”

It was an unusual day in court. It’s rare for defendants to represent themselves, especially in complex, violent crimes such as this week’s case….

Yeah, John. To say the least…

You hear about rape victims feeling like they’re the ones on trial, but I have never even heard of something this outrageous.

I read on to determine how such a miscarriage of justice could occur, and found this explanation:

It was only after questioning Martinez and making sure he knew he was giving up his right to an attorney that trial Judge Knox McMahon allowed him to be his own lawyer. If McMahon had refused Martinez’s request to be his own attorney with cross-examination rights, the case could be overturned on appeal….

Well, I’m sure that you, like me, are all broken up from worrying about Martinez and his rights.

Look, I’m not one of these people who goes on and on about how our system only extends rights to the accused and none to the victims, yadda-yadda. I believe in the rule of law. I believe in being innocent until proven guilty. And while I’m sympathetic, I feel like sometimes the victim’s rights movement can go a tad overboard.

But a terrible thing happened in one of our courtrooms yesterday. Even if you extend the “innocent-until-proven-guilty” thing to the point of saying “hey, maybe the guy didn’t do it” — you’re left with the fact that to this innocent woman and her innocent children, he did do it. And they were subjected to this outrage.

And I’m wondering whether there are any statutory remedies out there to make sure this never happens again…

The SC Supreme Court sides with Pascoe against Wilson

Wilson, flanked by ex-AGs Charlie Condon and Henry McMaster, during his raging presser back in March.

Wilson, flanked by ex-AGs Charlie Condon and Henry McMaster, during his raging presser back in March.

Which surprises me. I haven’t read the decision yet, but John Monk’s story doesn’t explain how the court got around the fact that you can’t call a statewide grand jury without the attorney general.

All it says is that the court has essentially ruled that, for the sake of this investigation, Pascoe is the attorney general. Huh, seems like that would surprise those involved in writing the state constitution. But hey, they’re the experts, not me.

An excerpt:

The S.C. Supreme Court ruled Wednesday that Attorney General Alan Wilson can’t stop his special prosecutor, David Pascoe, from investigating possible corruption in the General Assembly.IMG_david_pascoe

Although Wilson tried to stop Pascoe – and apparently halted Pascoe’s investigation several months ago – the Supreme Court made it clear in its Wednesday ruling that Wilson acted unlawfully in trying to keep Pascoe from continuing his probe. Pascoe was working with SLED on the investigation.

“…the Attorney General’s Office’s purported termination of Pascoe’s designation was not valid,” the Supreme Court ruled in a 4-1 opinion.

The Supreme Court’s decision means that Pascoe now is the effective acting Attorney General for the purpose of Pascoe’s General Assembly investigation – and Wilson can’t stop him from proceeding….

The Court seems to have essentially sided with the popular narrative that Alan Wilson was trying to stop an investigation into his political buddies — which I know a lot of folks accept as gospel, but which I don’t believe for a second. It seemed to me that Pascoe acted outside the law in trying to call the jury on his own — something that Wilson made it clear he was ready and willing to do for him.

Of course, Wilson didn’t do himself any good with that raging press conference — but that wouldn’t seem to change the law, just his political image.

But maybe the court ‘splained it in a way that negates my concerns. We’ll see…

What would you do to get the right to vote, if you didn’t have it?

rights

Following up a bit on my last post, about political demonstrations and whether they’re worthwhile…

I mentioned something about having seen the film “Suffragette,” and wondered about how wise it was for those women to break shop windows as a way of persuading men that they should be allowed to vote. Seemed kind of self-defeating, to me. Like, “I’m a rational, responsible, thoughtful human being who would make a great voter because I make good decisions! And to prove it, I’m going to break that window with this rock!”

Later, I got to thinking…

Just how precious is the right to vote? It’s a biggie, no question. Very important, even though it’s a little hard to fully appreciate it in an election year such as this one. Hard to have a representative democracy without it.

Interestingly, a 1913 film about suffragettes also emphasized the rock-throwing.

Interestingly, a 1913 film about suffragettes also emphasized the rock-throwing.

But is it the most essential right? Is it the one from which all others spring? Not really, I don’t think. I think the ones entailed in the First Amendment come higher, speak more to the essence of liberty — the ones that add up to freedom of conscience.

What would I be prepared to do to get suffrage if I didn’t have it? March? I suppose so. Break windows? I don’t know about that

But I would definitely use the other rights I just mentioned. I’d write about it; I’d speak about it. I’d peaceably assemble, and petition the government for redress. And I’d be very glad that I had all of those rights, which I would see as the key to getting the others.

The question may seem silly — of course, the right to vote is essential in a representative democracy.

But if you had to choose the lesser of two weevils — would it be the last right you gave up, or are others more precious?

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Krauthammer’s onto something re Comey’s motivation

comey testify

 

Charles Krauthammer says he thinks he understands why FBI Director Comey recommended that Hillary Clinton not be prosecuted, despite findings of illegality — and it doesn’t fit the usual GOP conspiracy theories.

In fact, it’s remarkably like what I said earlier in the week. Says Krauthammer:

The usual answer is that the Clintons are treated by a different standard. Only little people pay. They are too well-connected, too well-protected to be treated like everybody else.

Alternatively, the explanation lies with Comey: He gave in to implicit political pressure, the desire to please those in power.

Certainly plausible, but given Comey’s reputation for probity and given that he holds a 10-year appointment, I’d suggest a third line of reasoning.

When Chief Justice John Roberts used a tortured, logic-defying argument to uphold Obamacare, he was subjected to similar accusations of bad faith. My view was that, as guardian of the Supreme Court’s public standing, he thought the issue too momentous — and the implications for the country too large — to hinge on a decision of the court. Especially afterBush v. Gore, Roberts wanted to keep the court from overturning the political branches on so monumental a piece of social legislation.

I would suggest that Comey’s thinking, whether conscious or not, was similar: He did not want the FBI director to end up as the arbiter of the 2016 presidential election. If Clinton were not a presumptive presidential nominee but simply a retired secretary of state, he might well have made a different recommendation…

I think there’s something to that. This was a judgment call, and all sorts of factors go into judgments.

As I said before, there’s a point at which it is simply not in the national interest to reach back in time and use criminal statutes to punish those with whom one disagrees. Example: There are lots of folks who’ve always hated Tony Blair because of Iraq who now want to seem him prosecuted for it, just as there were Democrats who wanted to go back and prosecute people in the Bush administration once Obama took office (a proposition that Obama wisely dismissed).

Yep, I believe firmly in the rule of law, in the importance of having a country that is no respecter of persons. But in some cases, respect for the overall good of the country overrides consideration of the legal fate of an individual.

Comey had a judgment call to make, and he chose the less harmful option.

And if you don’t like it, remember that it was just a recommendation. It did not legally bind anyone. What he said was one man’s opinion (and also the unanimous opinion of those taking part in the FBI investigation — the opinions of professionals, not partisans). And I find his opinion defensible, even laudable.

Donnie Myers makes list of America’s 5 ‘deadliest prosecutors’

And it’s getting lede treatment by The Guardian, in keeping with that newspaper’s fascination with us barbarous Americans with our guns and capital punishment.

Excerpts:

The five are profiled in a new report from Harvard Law School’s Fair Punishment Project. Titled America’s Top Five Deadliest Prosecutors, the report highlights the lion-sized role in the modern death penalty of just four men and one woman. Donnie Myers

They are: Joe Freeman Britt of Robeson County, North Carolina; Donnie Myers of Lexington, South Carolina; Bob Macy of Oklahoma County; Lynne Abraham of Philadelphia County; and Johnny Holmes of Harris County, Texas….

Myers is the only one of the five who is still in office, with plans to retire at the end of the year. The lawyer, the one with the electric chair paperweight on his desk, did not respond to the Guardian’s questions about his inclusion in the top five club of deadliest prosecutors.

He achieved 39 death sentences in the course of his 38 years in practice but labored under a 46% rate of misconduct that was later discovered. Six of his death sentences were overturned due to problems in the way he had secured a capital sentence – often involving discriminatory exclusions of jurors based on race.

The report notes that Myers once rolled a baby’s crib draped in black cloth in front of a capital jury and, crying profusely, told them that a failure to return a death sentence would be like declaring “open season on babies in Lexington County”. In another death penalty case, he referred to the black defendant as “King Kong”, a “monster”, “caveman” and “beast of burden”….

Myers, of course, will be replaced by former deputy Rick Hubbard, after Hubbard’s victory in Tuesday’s primary.

Here’s part of what Cindi wrote about Hubbard in The State‘s endorsement of him:

Mr. Hubbard doesn’t speak ill of his former boss, but he does acknowledge that there have been problems in the office. He does note that he does not share Mr. Myers’ “old-school style of doing things.” And he makes a convincing case that he would represent a clean break….

Mr. Hubbard also seems to have the deepest appreciation of the three of the moral duty of a prosecutor to seek justice regardless of public opinion, and to seek justice even when that means losing a case. As he put it, “A prosecutor’s job is to do the right thing and to do it for the right reason.” After 40 years of a win-at-any-cost solicitor, the people in Lexington, Edgefield, McCormick and Saluda counties deserve a prosecutor who is deeply committed to putting justice first, always, and who has the experience and expertise to deliver that justice in a steady, reliable way….

Which is a more precious right: freedom to travel or guns?

Note that I did not ask which is constitutionally protected. I’m asking which is more fundamental to a free people.

Whenever we talk about barring people on no-fly lists or terror watch lists from obtaining firearms, Bryan or someone else will make the point that we would then be taking away a constitutionally protected right without due process — since those travel lists maintained by law enforcement don’t involve judgments by courts.

Good point, logically and legally sound. It “is a lucid, intelligent, well thought-out objection.”

We have the freedom to put on out travel vests and go where we like, no matter how ridiculous we may look.

We have the freedom to put on our travel vests and go where we like, no matter how ridiculous we may look.

But for me, it raises another question. Which is more fundamental to our basic, everyday liberty: The freedom to travel, to go where we choose within these United States whenever we like? Or the right to bear arms?

I would think the first one is. No, it’s not plainly addressed in the Bill of Rights the way guns are, but it’s protected by the Privileges and Immunities Clause — in other words, in the actual main body of the Constitution as opposed to the afterthoughts. (And in a sense the whole Constitution was an attempt to break down barriers between states and make a more perfect union, which would include moving about freely from state to state.)

We who are not on watch lists sort of take it for granted. People in Nazi Germany and the Soviet Union did not, with their internal passports and other requirements to have the right papers to be here or there at a particular time. When I read about such things during the Cold War, I thought that difference as much as anything else illustrated the contrast between our countries. (Actually, I see that Russia, China, Iraq and Ukraine still have such systems. Huh.)

The right to bear arms is not such an essential divider between free and unfree countries — other liberal democracies don’t share this, um, “blessing” with us.

No, it doesn’t have a whole cult built up around it the way the 2nd Amendment does. But isn’t the freedom to move about even more precious than the right to go armed?

About that sit-in over guns by Democrats in the U.S. House…

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Twitter photo from U.S. Rep. Mike Doyle.

This is my day for going to awards ceremonies. I’m about to go to The State to see Cindi Scoppe get the Gonzales Award.

But while I’m gone, y’all should talk amongst yourselves about the Democrats’ sit-in over guns in the U.S. House.

Here’s what the president thinks:

What do y’all think?

Response to Post series from James Flowers

I got this comment over the weekend from James Flowers, Leon Lott’s opponent for the Democratic nomination for Richland County sheriff:

Brad Warthen. You should have reached out to me before writing this article so that you would have actual facts instead of what is written in this article by the civil attorney. First of all, as a SLED agent we investigate CRIMINAL actions. This was a CIVIL deposition. My only purpose is to gather the facts and provide them to the James FlowersSolicitor. What you obviously don’t know is that the Solicitor’s office, the FBI, and the US Attorney’s office reviewed my report and had ZERO issues with the work. The Solicitor’s office made the determination that there was no criminal action on the part of the law enforcement officers not Me or SLED. Also, when 3 certified law enforcement officers that are serving 2 valid warrants have any sort of weapon pointed at them, they should by all means respond with deadly force. A real law enforcement leader stands behind and supports law enforcement officers 100% when they are right. Even if he has to be arrogant to do it. This article is nothing more than a hit piece orchestrated by an overzealous civil attorney who has a different legal standard than law enforcement does in reviewing shootings. I also noticed that you didn’t mention the unflattering second article about your friend Lott. So please do some due diligence prior to your next blog. Thank you. James Flowers.

As it happens, the last person to get on my case for not having contacted him before posting something was… Leon Lott. And he kind of had a point, from his perspective, since the point of the post he called about was to wonder aloud why the sheriff hadn’t done a certain thing. Turns out that he had an answer to the question that he wanted to share.

I will always, always be on the defensive when people say I should have contacted them before posting something. But here’s the thing, folks: This is  a commentary blog, not a primary news source. I read things, and I react to them. And invite you to react to my reactions. On the rare occasions that I have time to go out and cover an event myself, I do so. Look back — you’ll see that’s my M.O. It’s not optimal; I wish I could afford to blog full-time. But WYSIWYG.

As it is, I don’t find time to comment on as many things as I’d like to — not even close to it. I’m very straightforward with you about the basis of my comments, so you can look at what I’m looking at and challenge my conclusions. And your comments, like Mr. Flowers’, get posted as well.

In this case, I spent way more time than I usually spend on a single post because it took so long for me to read that 7,000-word Washington Post article on which it was based. As I said, I’d read that one story and the fourth piece from the series by Radley Balko (more accurately, I skimmed the fourth piece). Now that Mr. Flowers has said Lott looks bad in the second installment of the series, I’ll go read that, and share what I find. I probably won’t have time to read the third piece today, but if you get there ahead of me, please share what you find.

Oh, and I don’t plan to call Leon before sharing what I find in that second installment. The story says what it says, and that’s what I’ll be reacting to — as per usual.

Although if I can find the time later, this subject is interesting enough that I might go above and beyond (in other words, take the kind of time I did back when I got paid to do this) and give both Lott and Flowers a call. But it remains to be seen whether that will be possible between now and next Tuesday’s primary.

Maybe some of my colleagues out there in the community who still get paid to do such reporting will get to it ahead of me. Let’s hope so.

Anyway, I welcome Mr. Flowers to the conversation.

WashPost raises serious questions about SLED probes — and about Lott’s primary opponent, James Flowers

Actually, that’s a bit of an understatement. It raises loud alarms.

I regret that I failed to read any of this series from The Washington Post until our own Jeff Mobley brought it to my attention. I remember seeing a rather lurid headline about law enforcement in SC, noting that the story was very long (more than 7,000 words) and meaning to go back and read it later. I never did.

I should have.

Basically, the series reports that while South Carolina has looked pretty good for investigating officer-involved shootings in the last couple of years, those few cases don’t tell the whole story by a long shot. In fact, this series suggests that our system of having such shootings investigated by SLED (everywhere but in Richland County) looks good in theory, in practice it falls far short of providing a credible check on police.

The series begins with the horrific story of the death of Lori Jean Ellis, a 52-year-old black woman, at the hands of cops in 2008.

There was a lot in police accounts of her killing to raise questions, but none more dramatic than the weapon with which she was supposed to have fired at the officers before they fired back with deadly effect. They reported see a flash and smoke from a weapon that, based on its loud report, could only have been a high-powered rifle.

It was a pellet gun. Which means, for those not hip to such things, that it would not produce smoke, a flash or a bang. And it’s not entirely clear that she fired it at them, or even aimed it at them.

And yet the officers were never questioned about this discrepancy, a lapse that this report suggests is all too common in SLED investigations.

You might think Richland County Sheriff Leon Lott would come out looking pretty bad in these reports, since his department doesn’t even go in for the window-dressing (at least, these reports suggest it’s only window-dressing) of SLED investigations, preferring to handle such shootings internally.

But, at least in the two installments I’ve read so far, is not the case. In fact, in one case, he comes out looking better than others — as the only officer who spoke to the journalist who wrote the series, Radley Balko. (Although his comments dismissing the need for outside investigations didn’t inspire confidence.)

On the other hand, his opponent in this month’s primary looks pretty horrible.

James Flowers was the lead SLED investigator in the shooting of Lori Jean Ellis. And he showed a shocking lack of concern over the discrepancies in the officers’ account. From his deposition in a lawsuit brought by the estate of Ms. Ellis:

Phillips: So did anything prevent you, from the moment that you found out it was a mere BB gun, to say, “I want to go back and talk to this deputy . . .”

Flowers: Nothing prevented me from doing that.

James Flowers

James Flowers

Phillips: Okay. Why didn’t you go back?

Flowers: Because I didn’t feel it necessary.

Phillips: So someone telling you something that you’ve never seen before, that doesn’t compel you to maybe follow up?

Flowers: No. Not in all cases . . .

Phillips:  . . . so if I tell you something that can’t physically happen, you’re just going to take my word for it?

Flowers: See, here’s the thing. As the lead investigator for the state’s premiere law enforcement agency, it is my responsibility to put this case together. After looking at this information, I deemed that it was not necessary to interview that officer again. And that was the decision that I made….

As a police expert interviewed for the series notes,

““The arrogance here is stunning,” Downing says. “This response either reveals Flowers’s incompetence or his bias. Either way, he should not be conducting investigations of officer-involved shootings.”

You should go read the whole thing, or at least that first installment. It’s disturbing.

By the way, there are mentions in the series about legislation to make changes to such procedures in S.C. I’m unclear as I write this as to what happened to that legislation in the session that ended yesterday…

Feds to seek death penalty for Roof

BBC Roof

As you see above, some South Carolina news is leading the BBC.

Here’s John Monk’s version:

Federal prosecutors on Tuesday announced their intent to seek the death penalty against accused hate crimes Charleston church killer Dylann Roof.

“Dylann Storm Roof has expressed hatred and contempt towards African Americans, as well as other groups, as well as other groups, and his animosity towards African Americans played a role in the murders charged in the (last July’s) indictment,” the notice said.

Roof, 21, of Columbia, is white. All his victims were African American.

“Roof targeted men and women participating in a Bible-study group at the Emanuel AME Church in order to magnify the societal impact of the offenses,” the notice said.

David Bruck, one of Roof’s lawyers, said Tuesday the defense team would have no comment on the government decision….

Thoughts?

Personally, I’m always against the death penalty. Of course, if you’re going to have one, this would seem to be the sort of case it would be designed for.

That said, and once again if you are going to have capital punishment, it seems more legitimately the province of state government, and not the feds. And certainly not for Thoughtcrime, which seems to be the federal interest in this. This is the one thing that can bring out libertarian impulses in me, especially if you’re talking about executing people for having the wrong ideas, however abhorrent.

Roof stands accused of committing a horrific, unspeakable crime upon good people who were our neighbors here in South Carolina. I think our laws, and our courts, are perfectly capable of dealing with him.

Just the facts, ma’am — please

Cindi Scoppe’s picking on my girl Nikki again, and unfortunately, she deserves it. Did you see Cindi’s column Thursday?

FOR ALL THE good she has done on several issues, Gov. Haley retains two deeply troubling flaws: her disregard for the rule of law and her disinterest in the truth….

During a visit to a Columbia prison, Gov. Haley assured an inmate that police officers aren’t “out to get you.” Because of the state’s new body camera law, she said, “every one of those officers has to wear a body camera, and the reason is, that way it’s fair to them and it’s fair to you. So if something happens, we can see it.”

That sounds like a great law. But it’s not the law the governor signed, as The Associated Press’ Seanna Adcox pointed out — and bless her for recognizing that one of the most important things a reporter can do is to tell us what the facts actually are rather than simply regurgitating what public figures say the facts are.

The law does not actually require “every one of those officers” to wear a body camera; each department gets to decide which officers wear body cameras, and it won’t necessarily be every uniformed officer who wears a gun.

The requirement does not actually kick in until the state pays for the program — projected to cost up to $21 million, or about $18 million more than it has provided so far. (Ms. Adcox noted that the Legislature passed a law 18 years ago requiring all drunken-driving arrests to be videotaped, but the state still hasn’t provided cameras for all police cars.)…

Thanks, Cindi. And thanks, Seanna. But you know, it would be nice if governor would just state the facts so that journalists don’t have to run around behind her setting things straight. I mean, they have their hands full without that.

It gets worse, by the way:

Most significantly, the law the governor signed will not actually let us see the video. The law the governor signed says body-cam videos aren’t even public records. It does require police to turn over the video to people who are arrested or who file a civil suit involving the incident recorded, but the only mechanism for obtaining that video is filing a lawsuit — or being charged with a crime. Otherwise, it’s entirely up to police to decide whether we get to see the video when an officer shoots someone….

The initial error is probably innocent enough (I suspect it felt true to the governor), although disturbing — we’d really like our governors to know what they’re signing.

But the worst part of this tale is that when given a chance to set things straight, the governor’s office did not. And about that, Cindi said:

When someone says, “The law the governor described is not the law she signed,” the correct response is not, “She’s so proud of that law.” The correct response is: “Oh, my goodness; you’re right. She is so sorry about that.”

By refusing to let her spokeswoman say that, the governor continues to make herself un-credible. And in this case, she is doing something worse: She is reducing the chance that we’ll ever get the law she told that inmate we have. The law that would be something to be really proud of.

The way to get that law is not to say it exists when it doesn’t. It’s to acknowledge that it does not exist, and to work to convince the Legislature to pass it.

Yep.

Scoppe: The law tends to support AG Wilson’s position

Wilson presser

I was glad to see Cindi Scoppe’s column Sunday, in which she spelled out more clearly what I thought I knew about the Wilson/Pascoe contretemps: That as hard as it might be for the casual observer to see (particularly given Wilson’s emotional presser), the attorney general seems to be on the right side of the law in this.

As Cindi wrote:

Cindi croppedThere are three major issues here: Did Mr. Pascoe have the legal authority to initiate a State Grand Jury investigation, or did he need Mr. Wilson’s authorization? Did Mr. Wilson have the legal authority to remove Mr. Pascoe from the case? And was Mr. Wilson justified in removing Mr. Pascoe? That last question is entirely different from whether it was legal…

And as you find from reading the rest of her piece, her answers are:

  1. No, Pascoe did not have that authority; Wilson has to sign off on a State Grand Jury initiation. The law doesn’t allow the AG to delegate that, however he may recuse himself from any other involvement in a case.
  2. Yes, of course Wilson has the authority to remove Pascoe and assign someone else. The attorney general is the boss of the solicitors. As Cindi notes, “recusal is a voluntary thing, left entirely to the discretion of the prosecutor. In fact, when judges recuse themselves, it’s not uncommon for them to later unrecuse themselves.” When it comes to appointing and firing special prosecutors, recusal is neither here nor there; it does not vacate the AG’s constitutional authority.
  3. Finally, on the judgment call of removing Pascoe, Cindi is less certain — but she doesn’t doubt the purity of Wilson’s intentions: “In his mind, he had to remove Mr. Pascoe — not to stymie the investigation but to salvage it. I’m not certain that was necessary, but I believe that he believed it was.”

Personally, on that last point, it seems that Pascoe’s insubordination demanded his removal — if Wilson’s account is accurate. That is, if Pascoe did indeed refuse to meet with the AG’s office to get proper authorization for a State Grand Jury investigation, choosing instead to launch an attack on the attorney general.

But then, we’ve yet to hear Pascoe’s defense of his actions on Good Friday…