Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May
Last December, when the DC Circuit ruled that the Archives should share Donald Trump’s materials relating to January 6 with the January 6 Committee, it emphasized the “rare and formidable alignment of factors supports the disclosure of the documents at issue.”
On this record, a rare and formidable alignment of factors supports the disclosure of the documents at issue. President Biden has made the considered determination that an assertion of executive privilege is not in the best interests of the United States given the January 6th Committee’s compelling need to investigate and remediate an unprecedented and violent attack on Congress itself. Congress has established that the information sought is vital to its legislative interests and the protection of the Capitol and its grounds. And the Political Branches are engaged in an ongoing process of negotiation and accommodation over the document requests.
It likewise pointed to the careful attention (and month-long reviews) the Biden White House gave to each tranche of materials at issue.
Still, when the head of the Executive Branch lays out the type of thoroughgoing analysis provided by President Biden, the scales tilt even more firmly against the contrary views of the former President.
Judge Patricia Millet’s opinion even found that the due consideration Biden exercised was enough to reject Trump’s claim that the Presidential Records Act had given him “unfettered discretion to waive” his own Executive Privilege claim.
Lastly, former President Trump argues that, to the extent the Presidential Records Act is construed to give the incumbent President “unfettered discretion to waive former Presidents’ executive privilege,” it is unconstitutional. Appellant Opening Br. 47. There is nothing “unfettered” about President Biden’s calibrated judgment in this case.
Citing Mazars, the opinion also noted SCOTUS’ deference to information-sharing accommodations between the Political Branches, the Executive and Legislative Branches.
Weighing still more heavily against former President Trump’s claim of privilege is the fact that the judgment of the Political Branches is unified as to these particular documents. President Biden agrees with Congress that its need for the documents at issue is “compelling[,]” and that it has a “sufficient factual predicate” for requesting them. First Remus Ltr., J.A. 107; see also Third Remus Ltr., J.A. 173. As a result, blocking disclosure would derail an ongoing process of accommodation and negotiation between the President and Congress, and instigate an interbranch dispute.
The Supreme Court has emphasized the importance of courts deferring to information-sharing agreements wrestled over and worked out between Congress and the President. See Mazars, 140 S. Ct. at 2029, 2031.
In other words, the request of a coequal branch of government, made with the assent of the incumbent President, presented a very powerful legal case for sharing Trump’s January 6 records with Congress.
When the Supreme Court considered the question, only Ginni Thomas’ spouse disagreed (Brett Kavanaugh did attempt to limit the decision).
The courts may well have come to this same conclusion had Merrick Garland’s DOJ subpoenaed records from the Archives for its own investigation of Donald Trump directly. A “subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding” is one of the three exceptions the Presidential Records Act makes to the parts of the law that restrict access to the materials for a period after the President’s Administration.
But constitutionally, it would have been a very different legal and political question.
Importantly, the only way to obtain a privilege waiver from Biden in that situation would be to violate DOJ’s Contacts Policy that firewalls the White House from ongoing criminal investigations, and so the request would either have lacked that waiver from the incumbent President, or would risk politicizing the DOJ investigation.
The Biden White House’s strict adherence to that Contacts Policy is what allowed Karine Jean-Pierre to make a categorical denial of any advance warning of the search on Trump’s home and to use that as a reaffirmation of the rule of law last week.
She’ll probably get similar questions today, and make the same categorical denial of any White House knowledge.
All that is the predictable background to the NYT report that, after the January 6 Committee subpoenaed these records, and after the Archives gave both Presidents an opportunity to weigh in, and after the DC Circuit and Supreme Court ruled against Trump’s complaints, DOJ subpoenaed all the same material from the Archives themselves.
Federal prosecutors investigating the role that former President Donald J. Trump and his allies played in the events leading up to the Jan. 6, 2021, attack on the Capitol have issued a grand jury subpoena to the National Archives for all the documents the agency provided to a parallel House select committee inquiry, according to a copy of the subpoena obtained by The New York Times.
The subpoena, issued to the National Archives in May, made a sweeping demand for “all materials, in whatever form” that the archives had given to the Jan. 6 House committee. Those materials included records from the files of Mr. Trump’s top aides, his daily schedule and phone logs and a draft text of the president’s speech that preceded the riot.
While the NYT doesn’t say it, it seems likely that the Archives gave these already privilege-reviewed documents to prosecutor Thomas Windom with nary a squeak, and we’re just learning about it — indeed Trump may have just learned about it, which is where the subpoena probably came from — four months later. We’re just learning about it, importantly, after the FBI seized another 27 boxes of documents that Trump had refused to turn over to the Archives, including records (if you can believe Paul Sperry) pertinent to January 6.
When I predicted this would happen in December, I went out of my way to ask constitutional lawyers if they had another solution to the puzzle of getting Trump’s documents without violating that Contacts Policy, and no one even engaged with a question — how to overcome Executive Privilege — that had been a real problem for Robert Mueller, when he was investigating Donald Trump.
People will wail about the timing of this request and others, including the NYT, will falsely claim this is proof that DOJ is following the January 6 Committee.
Asking the National Archives for any White House documents pertaining to the events surrounding Jan. 6 was one of the first major steps the House panel took in its investigation. And the grand jury subpoena suggests that the Justice Department has not only been following the committee’s lead in pursuing its inquiry, but also that prosecutors believe evidence of a crime may exist in the White House documents the archives turned over to the House panel.
There were covert steps taken before that, including the (admittedly belated) request for call records at least a month earlier.
In addition, Justice Department investigators in April received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows, according to two people familiar with the matter.
And we’ve already seen proof that the fake electors investigation, at least, has pursued leads that the Committee had not yet made public before DOJ was including them in subpoenas.
Furthermore, the subpoena was issued before the Committee started its public hearings on June 9.
There are a couple of other notable details about this timing.
First, in addition to coming after the SCOTUS decision, this subpoena came after Mark Meadows and Ivanka made efforts to comply with the Presidential Records Act by providing the Archives copies of official business they conducted on their own email and Signal accounts. It also came after any responsive documents from the 15 boxes of records that Trump did provide to the Archives earlier this year were identified. DOJ made its request at a time when the Archives were more complete than they had been when the Committee started identifying big gaps in the records.
The only thing we know remains missing from those Archives (aside from documents seized last week) is Peter Navarro’s ProtonMail account, which DOJ sued to obtain earlier this month.
The Archives’ request also came after Trump had largely given up the effort to fight individual releases.
As NYT correctly noted, DOJ only issued this subpoena at a time when it was issuing other subpoenas (the fact of, but not the substance, of Brandon Straka’s cooperation had been made public in January, and Ali Alexander’s excuses for his actions at the Capitol had already been debunked in January after Owen Shroyer, who was arrested a year ago, made the very same excuses).
The subpoena was issued to the National Archives around the same time that it became publicly known that the Justice Department was looking beyond the rioters who were present at the Capitol and trying to assess the culpability of people who had helped organize pro-Trump rallies in Washington on Jan. 6. In the spring, for instance, Mr. Windom issued a grand jury subpoena to Ali Alexander, a prominent organizer of “Stop the Steal” events who complied by submitting records to prosecutors and testifying before the grand jury.
We don’t know what steps DOJ took before May (aside from those that have shown in cases like Straka’s). We do know that at that point, DOJ started taking overt steps that would build on previous covert ones. We also know that we keep learning about steps that DOJ took months ago, when people were wailing that they would know if DOJ had taken such steps.
I can’t prove that this was always the plan from the time, 375 days ago, when I first observed how DOJ was getting privilege waivers from Biden without violating their new Contacts Policy. I can’t prove it was the plan when I wrote an entire post in December about the puzzle of Executive Privilege waivers. I had no idea that DOJ was issuing that subpoena when I stated that it was probably doing so in May, the month it occurred.
We should assume the same kind of [synthesis with a Congressional investigation as happened with Mueller] is happening here. All the more so given the really delicate privilege issues raised by this investigation, including Executive, Attorney-Client, and Speech and Debate. When all is said and done, I believe we will learn that Merrick Garland set things up in July such that the January 6 Committee could go pursue Trump documents at the Archives as a co-equal branch of government bolstered by Biden waivers that don’t require any visibility into DOJ’s investigation. Privilege reviews covering Rudy Giuliani, Sidney Powell, and John Eastman’s communications are also being done. That is, this time around, DOJ seems to have solved a problem that Mueller struggled with. And they did so with the unsolicited help of the January 6 Committee.
What I can say with no doubt, though, is that Merrick Garland’s DOJ solved one of the most challenging constitutional problems facing an investigation of a former President. And it solved that problem months ago.
And no one knew about it.
emptywheel Trump Espionage coverage
Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege
18 USC 793e in the Time of Shadow Brokers and Donald Trump
[from Rayne] Other Possible Classified Materials in Trump’s Safe
John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation
[from Peterr] Merrick Garland Preaches to an Overseas Audience
Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted
The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen
Merrick Garland Calls Trump’s Bluff
[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO
DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e
The Likely Content of a Trump Search Affidavit
Some Likely Exacerbating Factors that Would Contribute to a Trump Search
FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480
The ABCs (and Provisions e, f, and g) of the Espionage Act
Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late
How Trump’s Search Worked, with Nifty Graphic
Pat Philbin Knows Why the Bodies Are Buried
Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May
The emerging picture that DOJs investigation is more advanced than was known likely also means they have evidence about which we know nothing as well. Tantalizing..
Maybe Garland’s careful, methodical nature makes him a better than expected AG given these circumstances. The planning also allows them to conceal their hand until such time as they choose to reveal it, which seems to have lulled Trump into a false sense of security.
Which is what we have been saying here all along.
👍
yes, very true and duly noted…thank you.
OK, Mr Friday morning quarterback… :~)
And Dr Wheeler has been remarkably prescient and accurate in her assertions and predictions.
It’s why we come here.
I’ll hit that donate button (Support actually)!
Any lawyer helping Trump that reads EW would figure out this. I appreciate EW, but isn’t the EW info helping Trump team?
I mean that they may be able to get hints that otherwise they are not able to put together on their own.
Maybe I am a bit paranoid, but the last thing we want is provide advanced clues for team Trump.
Another note, it means that are no leaks from the DOJ/FBI which is awesome.
No.
~scratching my head~
What?
How is piecing together what Trump — and many of his team and family members — already knows “helping Trump team”? Marcy nor anyone outside DOJ has any certainty where the investigation is with regard to the stolen documents. All that’s available is what’s been reported by DOJ, the court, the media, and team Trump, and team Trump has the inside track already next to DOJ. They’re not getting any help from this site.
If anything, it may be more difficult for Trump to find a willing criminal attorney because so many pieces pulled together make Trump’s exposure more obvious.
It’s unlikely to have helped Twitler stay out of jail, if that’s what you’re asking?
wow. i very much appreciate all you folks do on this blog site. it is all quite amazing. looks like Garland and Biden are ninjas . . .
The whole point is Biden is not a ninja. He is deliberately compartmented out of this to remove the appearance of and opportunity for political manipulation. It was wise and perhaps planned since January 6 to preserve a pathway to hold insurrectionist accountable and counter the wailing from the collaborators and enablers when top actors were finally in the pincers of justice.
Pincers of Justice is the name of my future shellfish restaurant.
BUT he did nominate Garland.
Biden’s no ninja and he’s not ‘wise’.
He’s just operating as a ‘normal POTUS should and allowing the DoJ to attend to their work unimpeded.
He’s made some tough decisions that weaker Presidents would not have. Leaving Afghanistan finally, fer instance. Also, being incredibly tough on Russia. You might not agree that those decisions are wise…but they are tough calls that Biden has made.
From the video upload dates, it looks like the WH press conference in the video was on 10th, before Garland’s statement on the 12th. I kept wondering why she didn’t refer to that or the written motion to unseal.
Emptywheel kept me reasonably sane, less despairing about whether *this time* the WH criminals would be brought to justice, or would it be the same old “look forward, but don’t look to hard” BS. Phew. BTW: at one point bmaz told me to take a “chill pill”. And I did, or rather saw my doctor and was put on anti-depressants. So, thanks bmaz.
I hope things are well! We still don’t know exactly where it will all end up, but it has been plugging along, and, really at a good clip for an investigation this huge and sprawling. And DOJ and their grand juries are almost certainly far ahead of what the public knows, even here at EW, they just cannot throw it out like red meat such as the J6 Committee can because of GJ secrecy rules and DOJ protocols. And it will be a travesty if the affidavit gets released prematurely just because people are squawking about it. Keep doing it the right way.
Amen!
Since the magistrate has been a target of the reprisal disclosures, I think the court may want to disclose some information from the affidavit. It seems that the names and testimony of high ranking WH executives and attorneys are known, and what they explained is mostly in the public domain by now. I think the court will ask the government for some disclosures that demonstrate the egregious nature of the alleged offenses. Other than that, we have to wait.
Bullshit, not one fucking word should be UNsealed. Just because media outlets seeking a story they can sell and prurient idiot on the internet want to see it means exactly nothing. Do it right, as always done, and do not set a horrible precedent.And, NO, a “redacted version”, with all the good material excised is no solution either as it would be incomplete and therefor inaccurate. The discussion over releasing it is one of the dumbest and most craven I can possibly imagine. Follow the law and normal process.
Of course you mean, “…not one fucking word should be UNsealed.”
Yes. And thanks!
Based on the reporting the judge has different thoughts on the release. 1:30 PM CST bringing them back next Thursday
If so, then he is a fucking asshole and idiot. Full stop.
https://www.nytimes.com/2022/08/18/us/politics/trump-fbi-affidavit-warrant.html
“Ruling from the bench, the judge, Bruce E. Reinhart, said it was “very important” that the public have as “much information” as it can about the search at Mar-a-Lago, Mr. Trump’s Florida residence, noting that there were portions of the affidavit that “could be presumptively unsealed.”
Screw Reinhart. Propose a “redacted version” that is as black as an NSA response to POIA. The appeal forever Reinhard’s idiotic order.
Take a chill pill, I think you’ve recommended, yes? Just look at how different the coverage has been.
…
Meh.
That’s swell. What are you going to argue the next time this crap is pulled on you in court? Oh, that only applies to me. Sorry.
LOL In this venue? Yeah, only you, Care Bear.
Seriously, the tweets about this crap swung widely depending on the tweeter, placing emphasis on disclosure/non-disclosure and then lo, the judge released additional documents which merely reinforced what was known. So much click bait.
Lol, “venue”?? I do not give a crap what anybody says, especially if they don’t actually do this. If they don’t, they do not know jack. And, no, the FRCRP are the same for the entire country. So, yeah, this garbage will come up anytime someone like me wants to keep something Grand Jury related sealed. It is disgraceful beyond all belief. This is simply ludicrous.
Nothing that will surprise readers here. (Linked to a partial image on the next thread.)
Isn’t he just punting? I can’t imagine DoJ not appealing if they don’t accept the redactions. Seems kind of spineless to me.
Yes? Maybe? I have no idea. Fair question as Reinhart and family were threatened. Magistrate judges are real judges. They do a lot. Have staffs and clerk etc. What they do impacts a LOT. Reinhart really was just a normal entry point though. But, if I am DOJ, and lose something like this, First consider a motion for reconsideration. Then “appeal” to the Chief Judge/assigned Article III judge. If lose that, go to Circuit Court.
Completely agree on this point.
The media arguments demanding the information on the affidavit “today” because it is of public import is an asinine argument from a group of self-serving entities.
What is most important to society is an investigation undertaken properly without undue influence or exposure from any source. And, as much as it pains me to admit, any information in that affidavit which could be used to harm Mr. Trump politically shouldn’t be shared at this stage, either.
I hope the DOJ fights for keeping the entire affidavit under seal, no matter the media/political pressure. It would be a terrible precedent to cave on this issue
Yes, exactly.
I think it was last year at a DOJ news conference that Garland said something like, “We have many forms of technology to capture information about the (lawlessness) on January 6th and the people involved, many sources and forms of information” (like the public wouldn’t believe). It was also something I had heard from the FBI about their intelligence collection on these criminals. (Parens mine). I knew right then and there that Garland was like a dog with a bone on these crimes all the way to the WH and SS.
People were very despondent. I said not to worry DOJ is all over it.
My, then, doctor told me in 2017 she had a noticeable surge in patients, especially women, seeking relief from anxiety and depression after the results of the 2016 election. It took me until the next presidential election in 2020 to seek help for anxiety and depression.
I recall reading that on Nov 9, 2016, the NYC suicide hotline received 450,000 calls.
Probably about right since 91% of the people living in The Donald’s district voted against him!
I’ve told my adult children that when things look their blackest, to close their eyes, take a breath and yell “Yee haw!” IOW that things in the fight between the rule of law and the rule of lawlessness are just getting ramped up. The power and earnestness of good, intelligent people and of the institutions of this great land are not nearly as visible in their operations as their opposites.
That posting is very persuasive.
I think the no contacts policy may have to have an exception, as the President has a duty to address the threats of violence to LE, and keep the public informed.
Patience is a virtue and sometimes hard to find. A broader stroke of the general population would be better informed if some of the Emptywheel articles and postings were unsealed, metaphorically speaking of course, and more widely disseminated. I have found patience by reading things here.
Expat @ 11:30
Mr. posaune thinks that there are no Marcy drafts — she pulls a Mozart when writing — everything is in her head — she just transcribes it from grey matter without error (like K. 551 Symphony #41).
The more information you have, the better you will be.
Snoop Dogg
I love it when Marcy takes victory laps. Thanks for keep me anchored close to reality.
I would like to see the bmaz version of this same post!
Nope, Marcy’s is very good, I have nothing particularly substantive to add.
Oh, but you do, bmaz. EW is clearly a team effort, even when you stay mostly in the shadows.
Mostly looking for creative new insults!
I’ve learned that bmaz’s “insults” are just an invitation to take a very cold bath and come back to reality. Much appreciated (except when not.)
I have a couple of questions about the materials seized from Trump’s basement.
– Do we know that these were all paper documents (no electronic media)?
– Also, if they were paper documents, would they have been copies of documents that were otherwise already held (e.g. paper print outs of electronic records, or photocopies of original paper docs)? i.e. Was the DOJ’s interest here simply securing the documents, or were they also interested in obtaining material they did not have? Equivalently, would Trump’s interest in keeping them have been in him retaining the copies for his own use, or to keep them out of the hands of the DOJ?
How are we supposed to know that?? Or, are you “just asking questions”?
How would I know what you might or might not know? That is why I asked!
But it is apparent that making inquiries for information, or current thinking, is unwelcome in this forum. This is not the first inconsiderate interaction I’ve had here, perhaps one of the most toxic blog forums I’ve ever encountered, and I’ve seen a few. In the future, I’ll direct my queries directly to Ms. Wheeler, who has had the courtesy to reply before.
Yeah, don’t go away mad “Jacob”, but do go away. By the way, I can find no evidence you have ever done anything in this forum before, with Marcy or anybody else. But nice story. If only it was true.
And yet, I’m telling the truth, bmaz. I guess, what I find so bizarre, and sad, actually, is how an innocuous question is responded to with so much derision, suspicion, and discourtesy, and especially by you. Yes, Ms. Wheeler has in fact apologized to me on your behalf twice, once in a comment, and once by email. This is, quite simply, an issue with *you*, not me. Or rather, the only fault of mine is for posting here again, when I should have learned better that it would result in nothing useful. Which is sad, because Ms. Wheeler has quite a lot that is interesting and useful to say. Which is why I read the blog, and her twitter.
So, you had a choice. You could have ignored my question if you had nothing good to say. Or you could have responded courteously, instead of implying that I was either an idiot or was being deceitful.
For example, you could have said, “I don’t think we know, but it is an interesting question, because it would answer a lot about what Trump’s motives might have been, and what the FBI investigation is about.”
Or you could have written, “I don’t think we can know, but actually most federal records are paper records first; electronic records are usually scans of what are originally paper documents.”
Or you could have written, “I don’t think we know yet, but given Trump’s computer illiteracy, my guess is that they would be paper records, either print-outs of electronic records, photocopies of paper records, or the original records themselves.”
Or you could have written, “I don’t think we can know for certain. But as a rule almost all federal records are scanned electronically, so even if Trump had taken original documents with him, then the feds are likely to have a copy somewhere.”
Or you could have written, “I don’t think we can know for certain. But one thing we do know is that the FBI knew that Trump still possessed classified documents, so we might infer from that either that there were copies around, or other existing records implied their existence.”
Or you could have written: How are we supposed to know that?? Or, are you “just asking questions”?
which is of course what you did. And maybe its because I’m an academic and asking questions is *normal* and *desirable*, and admitting ignorance is nothing shameful but a sign of strength, that I feel so .. shocked and perplexed. I ask other academics, strangers, naive questions all the time, and have almost never, in my entire career, been treated with so much automatic contempt, except here, and especially by you.
Without going into any additional detail here in this public venue, there has been ample reason for moderators to be skeptical and wary of your participation here.
This is not a venue for neophytes. We expect users to enter with better than average level of knowledge about current affairs because indulging in primers sucks time and energy away from the higher level work done here. The site has had to deal with numerous provocateurs who indulge in sealioning and concern trolling to DDoS comment threads, disrupt productive conversations, and/or undermine the validity of work here. It’s not going to be tolerated.
And frankly, your 445-word rant aimed at a moderator is toeing the line. Knock it off. Ask a rational and educated question if you have one you can’t answer for yourself with Google. Or take a back seat for a while. Let me make it clear this is your first warning.
If this is one of “the most toxic blog forums” you’ve been on, you don’t get around much. Don’t go out when it’s above 32 degrees.
A casual reading of the week-long gabfest about the search at Mar-a-Lago would suggest that no one but the FBI knows how much of what was taken was paper, nor whether the papers taken were copies or originals. In fact, that would be part of the FBI’s review.
Thank you, earlofhuntingdon. But please, excuse my ignorance, but perhaps you can tell me what you know about what sorts of records are produced that the President might have had in the White House. e.g. how far have we transitioned from paper record keeping to electronic record keeping? My only experience at the federal level is as a WOC at a VA hospital (we were partnering to do a PTSD study), and that was mostly training to protect patient privacy, etc.
I think that one problem some people may be having when people pop in here to ask questions is the so-called curse of knowledge (https://en.wikipedia.org/wiki/Curse_of_knowledge); you forget what others might not know. For my part, keeping up with these investigations is an interest of mine–maybe even civic duty–but it isn’t my day job, and I don’t have the time, experience or background to understand everything that might seem obvious to others. But then, not everyone with a legitimate interest will have the requisite background to understand everything. Perhaps, just perhaps, people should keep that in mind.
This is the kind of question you could answer for yourself by using a search engine. Instead you’re going to clutter our threads with another criticism of this site, attempting to police what the principals/contributors write, how moderators manage comment traffic, how community members participate.
This is a second warning. This is not a site for neophytes. You are not going to police this space.
As for regular community members at EW: You would do well to consider how you respond to possible DDoS efforts which are intended to move conversation away from the topic. Not every newbie “just asking questions” deserves a How-To or an Intro-to-Topic.
Get a grip, and don’t be a dick.
You might want to read the discussions of the past week or so here. Like all of those discussions. The information you are seeking is there.
I watched that clip. I get so tired of people talking about the “optics” of conducting a search of the house of a former president and possible future presidential candidate. The really bad optics are that we have a former president and possible future presidential candidate who is such a crook.
Even if the DOJ were to reveal anything about the case, most people on the right (and many on the left) wouldn’t take any notice.
Most on the right (and some on the left) only listen to Trump’s ‘reporting’ on events.
I recently saw a reporter asking (Gen Z) people on the street about the J6 hearings. None of them had watched the hearings, and most were unaware the Capitol was attacked on Jan 6.
Also some of the jury in the Steve Bannon contempt case, hadn’t heard of him.
That’s actually better in that they, as potential jurors, can approach his trial with an open mind. Every cloud…
“DOJ’s Contacts Policy that firewalls the White House from ongoing criminal investigations”
The “contacts policy” only seems to be honored in the breach, by Republicans.
Why do Democrats unilaterally constrain themselves with it?
“If Republicans do shitty things, why don’t Democrats?” is…a take, I guess.
Because that right custom is never honored by the breach and only by the observance.
This is not supposed to be based on politics! If Biden hadn’t walled himself off very early on, there would be no legitimacy to investigating very real offenses.
Maybe another reason, in general, is that of the last four sets of Democratic presidents and vps, only two have not been attorneys: Jimmy Carter and Al Gore.
The last four sets of Republicans were just the opposite: only two, Dan Quayle and Mike Pence, were attys.
Because a lot of the time the political machines in the White House get involved in Justice you can get into heaps of political turmoil. On the other hand, there’s been great strides in rights enforcement in this country when some Presidents have decided to take the bull by the horns…
To work in caricature:
1. If all the ducks lined up would the sheriff still arrest Bad Bart with a resulting death toll of hundreds on the cards?
2. Are all the top brass of the cavalry sanctified?