The Presidency of Donald J. Trump: No smocking guns. - Page 3805 - Politics and Economics

Fair enough, though prosecution is an executive function. It's just that post-J Edgar Hoover and post-Watergate there were barriers erected, or strengthened, between the executive and prosecutorial functions. Trump has just crapped on them daily since he began his campaign.

Here's the first serious source I found on the issue. I am not endorsing it, but it suggests serious people debate whether limitations on prosecutorial powers are constitutional.

Prakash, Sai, "The Chief Prosecutor" (2005). University of San Diego Public Law and Legal Theory Research Paper Series. 30.

Quote:

Since Watergate, legal scholars have participated in a larger debate
about the President’s constitutional relationship to prosecutions. In
particular, many legal scholars sought to debunk the received wisdom that
prosecution was an executive function subject to presidential control.
Revisionist scholars cited early statutes and practices meant to demonstrate
that early presidents lacked control over prosecution. Among other things,
scholars asserted that early presidents could not control either the federal
district attorneys or the popular prosecutors who brought qui tam suits to
enforce federal law. In fact, many of the revisionist claims are wrong and
others are beside the point. Despite the lack of statutory authority over the
district attorneys, early presidents directed the district attorneys in all sorts
of prosecutorial matters. As authority for their superintendence, presidents
cited their constitutional power over law execution. Moreover, there is no
evidence that the statutes authorizing qui tams were meant to preclude
presidential control over the qui tam suits. If English practice is any
indication, the chief executive was understood to enjoy a great deal of
control over popular prosecutors. Though there are many reasons to
divorce the president from prosecution, this scheme does not have the
imprimatur of early constitutional history. As a matter of the
Constitution’s original understanding, constitutional text, structure, and
history establish that the President is the constitutional prosecutor of all
federal offenses whether prosecuted by official or popular prosecutors.

http://digital.sandiego.edu/cgi/view...41/&path_info=

Some post-Nixon details:

Quote:

Senator Sam Ervin, Chairman of the famous Senate Select Committee to Investigate Campaign Practices, championed an independent Department of Justice, claiming that “[t]here is not one syllable in the Constitution that says that Congress cannot make the Justice Department independent of the President.”5

On NBC’s Meet the Press, presidential candidate Jimmy Carter actually pledged to establish an independent Department of Justice, complete with an attorney general with a term longer than the president’s. In a statement submitted to Chairman Ervin’s Senate Judiciary Committee, former special prosecutor Archibald Cox opposed Ervin’s legislation as unconstitutional because it deprived the president of removal authority over executive officers. He also doubted the constitutionality of
vesting in officials independent of the president “a very large part of the duty . . . ‘to take care that the laws be faithfully executed’ . . . . Civil suits and criminal prosecutions are major weapons in the execution of the laws.”7 Columbia Law Professor Herbert Wechsler agreed, noting that he did not see how the president could be held accountable for faithful law
execution if the function of law execution would be vested in officers independent of the president.8

Although such drastic measures went nowhere, in 1978 Congress enacted the historic, though more modest, Ethics in Government Act. The Act required the attorney general to seek the appointment of an independent counsel whenever there was specific and credible evidence that high-level executive branch officials may have violated the law.10
While the attorney general could remove the independent counsel, the Act limited the grounds of removal.11

[Note that the independent counsel law was not renewed post-Clinton, but new DOJ regulations governing the appointment of special counsels were put in place. The regulations could be sorta messed with, but I doubt they could be to the extent that Trump could fire Mueller, and anyway he would misunderstand the details.]

Last edited by simplicitus; 04-22-2018 at 10:01 AM.

04-22-2018 , 10:00 AM

#95103

Clovis8

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Interesting but as you already pointed out it is moot where the presidents power within the DoJ lies. No interpretation would allow for the president to weigh into cases where he has a clear conflict of interest.

Obviously, Trump doesn't believe in conflicts of interest.

04-22-2018 , 10:18 AM

#95104

simplicitus

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Ronan Farrow was accepted to Yale Law School at 16? WTF. (According to pre-interview bio from Fareed Zarkaria.) Not bad for a guy with a singer for a dad.

"Farrow attended Bard College at Simon's Rock, later transferring to Bard College for a bachelor of arts in philosophy[6] and graduating at age 15."

Damn, guy now has a Pulitzer and enogh accomplishments to be a grizzled veteran and looks young enogh to get carded.

Quote:

In 2009, Farrow joined the Obama administration as Special Adviser for Humanitarian and NGO Affairs in the Office of the Special Representative for Afghanistan and Pakistan.[10][18][19] He was part of a team of officials recruited by the diplomat Richard Holbrooke,[20] for whom Farrow had previously worked as a speechwriter.[21] For the next two years, Farrow was responsible for "overseeing the U.S. Government's relationships with civil society and nongovernmental actors" in Afghanistan and Pakistan.[10][18]

Not a fan of eugenics, but a law making Ronan Farrow sperm freely available wouldn't be a terrible idea.

Last edited by simplicitus; 04-22-2018 at 10:28 AM.

04-22-2018 , 10:22 AM

#95105

Rococo

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Quote:

Originally Posted by Elbow Jobertski

In a criminal context:

(This isn't a researched opinion or anything so I could be any magnitude of wrong... but this is would be my pre-research analysis I'd use to direct my more detailed research. I've done any number of criminal appeals but have never come across this issue)

The statement by the attorney isn't admissible. However, the state of the law suggests that the state could use that statement to find other evidence to build a case because the fruit of the poisonous tree doctrine wouldn't apply because it isn't a case of government misconduct.

Unlike say, if the statement was tortured out of a defendant. Any evidence the state found as a result of that statement would also be inadmissible.

More interesting is if the government induces an attorney to violate the privilege. That would be illegal, and I'd assume the client would have standing to challenge this as if it were state misconduct rather than just the lawyer violating privilege. Where this could get weird is the issue of whether there was inducement:

a) Cohen gets the fear and just starts spewing privileged information even though the feds bent over backwards to avoid obtaining privileged information

vs

b) The feds make it clear without saying it that if Cohen doesn't cough up privileged information he's going to do life in the Colorado supermax rather than eighteen months in tennis prison.

The feds seem to be aiming at (a) and taking extreme measures to avoid privileged information, but down the line some defense attorney is going to allege some version of (b) in a motion to suppress and muddy the factual waters.

Also: If the Feds were to willfully violate the Trump/Cohen privilege, I don't think that can be used by a third party to exclude any evidence against them because they would lack standing. So people other than Trump could be SOL.

I haven't researched the question either but what you say sounds correct to me (and not inconsistent with what I said).

04-22-2018 , 10:23 AM

#95106

tomdemaine

Just tries harder

Join Date: Feb 2005 Posts: 20,065

Quote:

Originally Posted by Clovis8

Odds Trump has ever read the Constitution? 10,000:1?

Lol better to set a line on the number of words total (not including stuff about himself) trump has read.

04-22-2018 , 10:50 AM

#95107

prana

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04-22-2018 , 11:22 AM

#95108

dth123451

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The NYT has a devastating takedown of Pruitt that isn't getting much attention, presumably because everyone has accepted that he's a piece of **** without peer.

04-22-2018 , 11:31 AM

#95109

True North

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What an absolute rube.

04-22-2018 , 11:38 AM

#95110

Matty Lice

veteran

Join Date: Aug 2017 Posts: 3,438

Quote:

Originally Posted by prana

Lol Billy knows better than to stand next to Melania.

04-22-2018 , 11:38 AM

#95111

zikzak

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Quote:

Originally Posted by prana

"Put Bill in the back. Way in the back."

04-22-2018 , 12:31 PM

#95112

Louis Cyphre

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Obama's grin's a bit much considering the occasion and look at those heels on Melania. I tought shoes like these are outlawed by the Geneva convention.

04-22-2018 , 12:36 PM

#95113

markksman

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Quote:

Originally Posted by prana

So many weird proportions in that picture. It’s creeping me out.

04-22-2018 , 12:44 PM

#95114

ScreaminAsian

For President

Join Date: Oct 2008 Posts: 33,333

Quote:

Originally Posted by Clovis8

Kellyanne is so terrible in interviews. It's unreal.

She gets asked about her husband's Tweets and then goes on tangent acting like she was asked about thier anal pegging games.

"How dare you ask about his tweets. Now we have really crossed a line in politics." -Kellyanne

That's the line!

cnn crossed the rubicon with that question

04-22-2018 , 12:51 PM

#95115

master3004

Revisionist Historian

Join Date: Mar 2010 Posts: 56,419

Quote:

Originally Posted by Louis Cyphre

Obama's grin's a bit much considering the occasion and look at those heels on Melania. I tought shoes like these are outlawed by the Geneva convention.

Never even noticed. But without them she's not much taller than Laura.

04-22-2018 , 12:56 PM

#95116

Matty Lice

veteran

Join Date: Aug 2017 Posts: 3,438

Quote:

Originally Posted by markksman

So many weird proportions in that picture. It’s creeping me out.

When I first saw the photo my thought was "Where's Barbara Bush?"

04-22-2018 , 01:15 PM

#95117

Jiggymike

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Quote:

Originally Posted by OmgGlutten!

lol @methhead conway

Melania would have all kinds of opportunity if she divorced Donald Trump.

MSNBC probably already salivating at the opportunity...

04-22-2018 , 01:23 PM

#95118

microbet

Solar Powered

Join Date: Jan 2005 Posts: 56,703

Quote:

Originally Posted by Matty Lice

Lol Billy knows better than to stand next to Hillary.

04-22-2018 , 01:30 PM

#95119

SuperUberBob

Not interesting enough

Join Date: Feb 2006 Posts: 48,217

Yeah. Melania's heels look like medieval torture devices

04-22-2018 , 01:42 PM

#95120

ScreaminAsian

For President

Join Date: Oct 2008 Posts: 33,333

just wanna update you guys on trump's twitter so you can get a sense of all the contemporary news he's publishing official presidential statements about

https://twitter.com/realDonaldTrump/...06076028653568