Law, Media Criticism, Political Commentary

Convicting Of Federal Crimes

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Ken White says it’s far too easy:

“Investigators and prosecutors will tell you that this is a good thing — that their power to convict targets for lying or obstruction helps catch criminals who would otherwise go free because of problems of proof. But people who hold vast power rarely think they ought not. In fact, the most petty and weak human reactions can lead to federal felony convictions during an investigation. To be a federal crime, a false statement to the federal government must be material — that is, meaningful.

But federal courts have defined materiality in a way that criminalizes trifles. Under current law, a statement is material if it is the sort of statement that could influence the federal government, whether or not it actually did. Hence, federal agents interrogating people always ask some questions as to which they already have irrefutable proof, hoping that the target will lie and hand the feds an easy conviction. That’s how FBI agents caught my client that early morning when he lied fruitlessly about being at a meeting the FBI knew with certainty he had attended.

People — good people, decent people, people who are usually honest — lie foolishly when frightened and under great stress. Is that immoral? That’s a philosophical question. Should it lead to a debilitating federal felony when it does not hinder a federal investigation in the slightest, when the federal government was fishing for a lie? No. That gives the feds far too much power to turn human frailty into crime.

Meanwhile, Glenn Reynolds says that Mueller should resign, or we need a second special counsel:

as Otis notes, the Justice Department’s rules forbid a person from participating in an investigation if doing so “may result in a personal … conflict of interest, or the appearance thereof.” Mueller clearly has one here.

And yet, despite a clear requirement that Mueller be “disqualified” from this investigation, his dismissal by either Trump or Sessions on the heels of the president’s firing of Comey would create a political firestorm that the president — even if entirely innocent of any wrongdoing whatsoever—might be unable to survive.

And Mueller can’t fix things by simply recusing himself from the “obstruction” investigation, while delegating it to a subordinate. Perhaps unwisely, he has chosen lawyers who records show have contributed substantially to Democratic campaigns. Indeed, two have given the maximum $2,700 donation to Hillary Clinton last year, while another worked for the Clinton Foundation. No one could accept them as impartial towards the man who defeated her.

So if he cares about the rules, Mueller needs to resign. But if he doesn’t, there is another way — and it may be the only way — to avoid either a tainted investigation or a political explosion.

Sessions can and should appoint a second special counsel lacking Mueller’s close relationship to any person “substantially involved in the conduct that is the subject of the investigation” of the “obstruction” issue, leaving the original investigation of “collusion” in the hands of Mueller.

And I suspect that there is no collusion. Undistracted by Comey’s nonsense, he would be able to focus on finding that.

8 thoughts on “Convicting Of Federal Crimes”

    1. There are so many poorly written federal felony statutes that this civil liberties lawyer claims the average person commits Three Felonies A Day. All you need is a DA with a hard on to go after you and you’re in trouble. They then load up the charge list to the point that 90% of people take a plea bargain (even if they’ve done nothing wrong) rather than risk a long prison term.

  2. The attempt to get Mueller to indict President Trump is rather ham-handed, according the last DoJ policy memorandum on the subject. The President is, in fact, the only executive branch official who cannot be indicted while in office. He must first be impeached and removed from office. Then he may be indicted and prosecuted.

    This whole thing is an embarrassment to the very idea of the United States of America and its Constitution.

  3. This reveals a dirty secret about law. It’s not reasoning. It’s mob rule with a veneer of respectability.

    A thing is legal if enough of the right people say it is even if it violates objective reality.

    A thing can be made legal if enough people force the issue and not enough push back.

    It took just one man in the right place to read intent into a law that only required a person to be reckless.

    The left loves lots of complicated laws because it facilitates tyranny. All they have to do is enforce it against their enemies and wave it for their friends. This is constantly repeated.

    The left knows this innately. The right needs to get a clue.

    The game isn’t fair. Trying to play it fair just guarantees losing when you should be winning.

    Eradicate! Eradicate! Eradicate!

    Rule of law is great when everyone abides by it.

    Otherwise, one person in the right position can thwart the will of millions of people.

  4. Instapundit may be right but a second special counsel is risky unless their scope is very limited.

  5. The reason Mueller will likely never resign, nor recuse from any aspect of the investigations, is described in a sentence in the first excerpt posted by Rand: “But people who hold vast power rarely think they ought not.”

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