A Touch To Much Of DOJ Politicization: Rosenstein Above Brand

I have been somewhat beyond stunned at the Emm Ess Emm rich to yammer and bloviate about the necessity of Rod Rosenstein to “recuse” because he is “conflicted”.

It is a stupid load of nonsense. First off, the discussion appears to be lead by media voices that would no know actual criminal law if it hit them in their bloviating ass. But, hey, they have a voice, right? Sure. Thing is, it ought be for the informed and intellectual, not the idiot reactionary adverse.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

21 replies
  1. earlofhuntingdon says:

    They would seem to be charter members of the Support Trump Club, as is Gingrich, who would be wise never to join a club that would have him as a member.  The STC’s business model seems to be to sow chaos at whatever parts of government still work.

  2. Charles says:

    Um.

     

    Well.

     

    Jack Goldsmith and Benjamin Wittes do know a thing or two about criminal law, and they say:

     

    “Most importantly, the substance of the investigation has apparently developed to include a potential obstruction of justice focus on the President in connection with (among other things) the President’s discussions with and firing of James Comey. In that matter, Rosenstein may be a witness because of his role in the firing, and thus he cannot at the same time be the supervisor of the investigation. (Noah Feldman makes a similar argument in BloombergView.) In addition, the President and his surrogates have viciously attacked Rosenstein’s choice of Special Counsel, Robert Mueller. This morning, the President also seemed to say that Rosenstein himself is responsible for what the President sees as a witch hunt against him:

    [Mindless tweet]

    These developments surely suffice to at least require Rosenstein’s recusal. “

     

    They seem to think Rachel Brand is just fine, even though she lacks prosecutorial experience. My read (1, 2) is that she is on the farther shores of the right-wing crazy, though a different shore than Trump.

    The right course of action is to place Mueller under a judge (not Ken Starr) approved by both political parties. This, of course, will never happen; guaranteed.

     

     

  3. earlofhuntingdon says:

    This full-court press suggests panic by the STC.  Trump would be right to be worried about more than damage to his global personal brand.  He should be worried about what any legitimate investigation would find out about Trump’s associates, his hundreds of businesses, and Trump himself.  In all likelihood, a target rich environment for a criminal prosecutor.

  4. orionATL says:

    the most reasonable way to read this new attack on the special counsel’s investigation of the “russian election matter” is as propaganda created by trump media pushers

    – to inform the faithful (as always)

    and

    – to undermine the doj inbestigation by enticing earnest media opinionators to take the bait and rattle away with the hope of unnerving poor rod, who always looks a bit nervous.

    this in turn serves two purposes for said earnest media opinionators:
    – to generate interest in one’s column and
    – to indicate one is a fair and balanced opinionator.

    to put this propaganda in perspective, recall that two weeks ago there was a great to do about whether special counsel muller was ethically forbidden from serving because his law firm represented trumpses.

    what happened there? case dismissed by doj.

    more recently, loyal dem lawyer jamie gorlick, who supported hillary clinton, is representing little trumpses. this of course is just a matter of trumpses personal preference.

    a law firm representing trump, sr. has deep ties to russian nationals and recently received russian law firm of the year award so i read.

    but the propaganda assaults will continue ad infinitum.

    it’s a p. r. case, folks, not a law case.

  5. RickR says:

    The attacks against Rosenstein are a demand that he be tied to a stake and instantaneously charged, tried, and executed for the crime of impeding the path of a speeding bullet.
    From a Luger. It’s been done in the past. Let’s keep it in the past.

  6. harpie says:

    bmaz, thanks for tweeting the Marty Lederman Just Security commentary about this issue. It seems to me a much better argument [not that I’m very knowledgeable about it all ;-} ] than that of Goldsmith/Wittes at Lawfare.

    And peripherally, I thought the following part was important and not otherwise much discussed;

    [The New York Times therefore should not have reported that Trump has “acknowledged” he is “under investigation”–let alone under investigation for having removed Comey. Trump didn’t “acknowledge” anything; he merely tweeted it. For all we know, Donald Trump has no idea whether he is “under investigation” unless he’s been informed he is a target, which is highly unlikely.]

  7. harpie says:

    bmaz, do you have any thoughts you’d like to share about the Michelle Carter involuntary manslaughter conviction?

     

    • bmaz says:

      Yes, horrendous facts, but she should not stand convicted of a crime. I think…think…it will get overturned on appeal.

      The ACLU of MA is spot on:

      Mr. Roy’s death is a terrible tragedy, but it is not a reason to stretch the boundaries of our criminal laws or abandon the protections of our constitution.

      There is no law in Massachusetts making it a crime to encourage someone, or even to persuade someone, to commit suicide. Yet Ms. Carter has now been convicted of manslaughter, based on the prosecution’s theory that, as a 17-year-old girl, she literally killed Mr. Roy with her words. This conviction exceeds the limits of our criminal laws and violates free speech protections guaranteed by the Massachusetts and U.S. Constitutions.

      The implications of this conviction go far beyond the tragic circumstances of Mr. Roy’s death. If allowed to stand, Ms. Carter’s conviction could chill important and worthwhile end-of-life discussions between loved ones across the Commonwealth.

      • Evangelista says:

        I don’t think I would count on an overturn.  There is a lot more evidence of willful intent in the case of M. Carter than in almost any traffic accident death case, where, even in absence of alcohol (which, being a brain-stupefier is an intent-reducer, which is ‘colored’ an intent-enhancer in the world of judicial fictions that are defined judicial realities in 21st century U.S. judiciary fatuity).

        Used to be we, in the U.S., laughed at reports from other “less enlightened” nations’ law systems just at them arresting someone who made an error or wrong or mis- judgment that for circumstances then and there and therefrom arising resulted in hurt or harm including death to other persons.  But, before anyone hyperventilates in outrage at my seeming admission of callousness, faints, falls and hurts him or her self, to make me criminally responsible for injuring said potential plaintiff having a civil right to be so sensitive, let me add that that was in the days when the criminal law required proof of criminal intent, willfulness, malice, aforethought.  In those days Seers could predict accidents and even Acts of God without concern that they might become criminally liable for effects of such said accident or Act injuring some third party who, not having attended the Seance and not having been thereafter warned, did suffer hurt, harm, injury, dismemberment or death, which, for absence of due warning was suffered at the responsibility of the aforesaid Seer, who Knew…

        No, by this point there is so much case law affirming and precedent establishing that, the Constitutions, Federal and States, being relicts, for veneration by discontents, not guidance for jurists and lawyers, being by these precedents demonstrated nulled and mooted, the law Must adhere to the Law, the Law being Established by Law and adherence to Law, without which most law would be not law, but bilgewater and nonsense, fatuous pronouncements of flatulate legislators deeming themselves ‘law-makers’, the letters of the law must be upheld…

        Besides, what is the life of a mere minor, not yet adult, with mind not yet fully formed in the scales of Justice against the weight and majesty of The Law?

        There is, too, that in the era before the tiny window of our own old one, when criminality required willful malice and intent, the Law as known today existed and operated, much as today, though with different vocabulary, so that then Ms Carter would be a Witch, and would have bewitched and wrought her evil will to make the decedent etc. etc. etc.

        As I recall, Salem was in Mass, and was famed for its judiciary’s abilities to identify witches and witchcrafts. So, we see, the Law has come full circle in the heartland of American spectral-base adjudication…

        Maybe in prison Ms Carter can read “Fox’s Book of Martyrs”, for companionship, to see she is not alone.  The numbers abused for judges being jackasses are legion.

  8. person1597 says:

    “John Parker, take this wheel. Just… just hold on, that’s good. It flies like a truck”

    Politco Banzai…
    “Boente is followed, on the succession list, by the U.S. attorney for the Eastern District of North Carolina, John Stuart Bruce; and the U.S. attorney for the Northern District of Texas, John Parker”

    • bmaz says:

      Except Bruce and Parker are both Acting status, i.e. not Senate confirmed, which means they are not eligible.

  9. Ed Walker says:

    Wittes and Goldsmith are basically partisans. This is, as bmaz says, a load of partisan nonsense, and the people pushing this are doing the work of the trumpists. They deserve this monstrous government; their pointless and self-aggrandizing above-it-allism is what brought us this dirtbag administration.

    • earlofhuntingdon says:

      Well said, Ed.  One would think that Mueller would add intimidating Rosenstein directly and through cut-outs to the potential obstruction charges.  Trump will, of course, do the same to any replacements at the DoJ, the FBI and as special counsel.

      It may take until after 2018’s elections, with a predictable large pick-up in congresscritters for the Dems, before the House takes seriously its obligation to evaluate impeaching Donaldo.

      I would add that what brought us this administration is also establishment Dems committing whole hog to neoliberalism’s priorities and the consequent torching of the interests, lives and futures of their traditional electorate.

  10. Kim Kaufman says:

    Wouldn’t Trump finding someone to head the FBI effectively replace Rosenstein’s involvement?

  11. earlofhuntingdon says:

    Trump is famous for tossing his own people under the bus, not to mention those he imagines oppose him, but it would be hard for him to find another Attorney General with as poor a memory and as loyal, supine and willing to fall on his sword as Jefferson Beauregard Sessions III.

  12. martin says:

    Jefferson Beauregard Sessions III

    Oh. My. God.  Never knew his full name.  It all falls in place now.  Fits like a surgeons glove. Thanks

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