//  6/8/17  //  Quick Reactions

Cross-posted from Shugerblog

1.  Nothing today changes my interpretation yesterday of the Comey timeline: taken all together WITH the firing, it constitutes obstruction of justice, but not a clear enough case for impeachment yet, especially in political terms. There are only minor additions from the testimony: When Trump said “I hope you can let it go,” Comey explained the tone: it felt like a directive. Comey also gave more context to the McCabe exchange as a hint of a quid-pro-quo. There’s more detail and context, but I don’t think that’s the biggest news of the day, other than putting a credible face and strong voice on TV with his powerful written statement from yesterday.

2.  My biggest question going into these hearings was: How seriously are the Republicans taking this inquiry?  The republic depends upon the Repubicans in Congress, and especially the Senate Intelligence Committee.  I’m not saying that Republicans were actively building a case for a prosecutor or impeachment, but I can’t emphasize enough how significant it is that none of the committee’s Republicans pressed any  attack on Comey’s character, motives, or credibility (other than McCain, more on that below). None of them were willing to play the attack dog role (see Arlen Specter from the Clarence Thomas-Anita Hill hearings). Their defense of Trump was relatively tepid, and I thought their questions were fair.  I think it’s a very positive sign that the committee will continue to investigate and work together — with Comey-ty? (Sorry!).  And there are strong signs that the inquiry will expand to other major players (more on that below, too.)

3a. Loretta Lynch, say it ain’t so. I can’t stand by my earlier criticism that the GOP was asking about Clinton email to distract from the Trump questions. They may have intended to change the subject, but they found a real subject to investigate further. Comey revealed Loretta Lynch pressured Comey to use the word “matter”, not investigation, was a huge mistake, a partisan intrusion, and probably changed history by making Comey more skeptical about her and the Clintons’ role. I inferred that it had an effect on Comey that may have changed how he handled the investigation later. She will face very tough questions. And it validates the follow-up questions on the Clinton campaign on their handling the email. We will hear a lot about this. It does not rise to obstruction, because it was wording/semantic, not the substance of investigation, but Comey was right to be troubled. Lynch and Bill Clinton should be called to testify and explain their behavior. What’s obstruction for the goose is osbstruction for the gander.

3b. But Comey re-emphasized that he was confident there was no underlying crime, and appointing an independent counsel would have been “brutally unfair.” He was wise to clarify that point.

4. McCain was incoherent and confused today, and he seemed off yesterday, too. He seemed to imply that the Clinton campaign could have been colluding with Russia, but he didn’t clarify this point. He mixed up names (Comey/Trump) and words several times. He claimed to see inconsistency with how Comey closed the Clinton case, but wouldn’t close the Trump/Russia case, but that claim is incoherent, too. I think it’s fair to attribute McCain’s conduct today to illness, not ill intent.

5. Comey repeatedly said he could not address questions about Attorney General Sessions because of the on-going investigation. Comey answered, “I was aware of facts” about Sessions’s Russia contacts that meant he didn’t go to Sessions in this matter. Comey confirms that Sessions is a possible target of the Mueller investigation. That’s not a surprise, but it underscores how this investigation is getting broader and closer to Trump. Sessions’s failure to follow up on his recusal is another big question about his own obstruction of justice in his case, as he participated in the firing.
6. Rod Rosenstein will face his own questions. Comey told Rosenstein about his concerns with Trump’s conduct (which should have raised red flags).  And yet Rosenstein still wrote the memo justifying his firing. Rosenstein may face fair questions about his possible participation in obstruction of justice.

The Real Problem with Seila

8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.

The Federal Judiciary Needs More Former Public Defenders

8/3/20  //  Commentary

By Orion de Nevers: The composition of President Trump’s record-setting number of judicial appointments has been widely criticized for its overwhelmingly white-male skew. But another, quieter, source of troubling homogeneity has also emerged: President Trump is loading the bench with former prosecutors.

Take Care