U.S. Judge Questions Mueller's Powers

[Fargo]

I guess I'm confused. Is that not a rational tactic, engaged by prosecutors everywhere?

Even if there is some sort of limitation, is the Manafort case an example of it?

He's been charged with crimes involving Russian interests in the course of an investigation of Russian interests. That's not exactly a poster child for prosecutorial abuse.

I am going to refer you back to Mueller's grant of authority, and the directly arising language.

 

[T.Lex]

I am going to refer you back to Mueller's grant of authority, and the directly arising language.

In which case, I think the not "directly" is a total loser. And, any limitation beyond that is legislating from the bench.

But seriously, we can both read that. What I'm missing is your opinion on why he can't file charges "arising from" the investigation for leverage? That doesn't appear to be prohibited anywhere.

(Without conceding that's what's doing. As I said, with regard to Manafort, these look like an easy "directly related" case.)

 

[Fargo]

In which case, I think the not "directly" is a total loser. And, any limitation beyond that is legislating from the bench.

But seriously, we can both read that. What I'm missing is your opinion on why he can't file charges "arising from" the investigation for leverage? That doesn't appear to be prohibited anywhere.

(Without conceding that's what's doing. As I said, with regard to Manafort, these look like an easy "directly related" case.)

Here is the transcript, quickly scanning it I really don't see anything remotely like legislating from the bench. Instead, specifically on pages 11 and 12, the prosecutor acknowledges that they are outside of the scope of directly arises but says it isn't judicially enforceable.

https://www.scribd.com/document/378...anscript-Hearing-Motion-May-4-2018#from_embed

 

[T.Lex]

Wow. Thank you for that link.

The discussion of the budget? Reporting to the AG? That's totally NOYDB. He's got no right to ask about that stuff. And he says nothing of the sort on 11 and 12. Page 14 is where he says that the charges are within the framework of the appointment.

Man, if this judge were engaged in this kind of thing in an anti-2A context, INGO would be all over it.

This conference soliloquy by the judge is kinda whatever. Actually reveals that he probably doesn't even understand the current context.

 

[Fargo]

Wow. Thank you for that link.

The discussion of the budget? Reporting to the AG? That's totally NOYDB. He's got no right to ask about that stuff. And he says nothing of the sort on 11 and 12. Page 14 is where he says that the charges are within the framework of the appointment.

Man, if this judge were engaged in this kind of thing in an anti-2A context, INGO would be all over it.

This conference soliloquy by the judge is kinda whatever. Actually reveals that he probably doesn't even understand the current context.

Sigh. Please read the paragraph split between the page 11-12 page break.

Still wondering where/what anything was legislated here?

 

[T.Lex]

Sigh. Please read the paragraph split between the page 11-12 page break.

Still wondering where/what anything was legislated here?

Yes, that page break is a one-line reference to historical fact. The investigation includes prior work by DOJ.

In terms of legislation from the bench - I don't believe he's issued the order yet, so we don't know for sure. My original post was intended to convey that, here at INGO, his questions would lead to dire warnings that the judge was trying to legislate from the bench.

Now, with the transcript handy:
- pg. 12 - judge telling the attorney what to argue (I hate it when they do that).
- pg. 12 - judge ranting about 'unfettered' power, when that's demonstrably untrue. "Arising from" while broader than "arising directly from" is not unfettered. It also strongly suggests that the judge believes he has the power to "fetter" the DOJ on this matter.
- pg. 13 - the ENTIRE budget/when will the investigation end questioning is inappropriate. None of his business. (I don't think ANY prosecutor would take that well.)
- pg. 13-14 - bizarre recitation of the 1990s era judicial conference when there was a statutory framework that DOESN'T EXIST now. Another clear indication that the judge is entertaining the same kind of restrictions in that previous legislation. Literally, considering legislating from the bench.
- pg. 17 - specifically rebuts the notion that they are out of bounds of their delegation of power. The judge might not like the result, but that shouldn't matter.
(-pg. 18 - Ok, you have to admit, the "I reminisce a lot." part is really really strange. He's a child of the 60s and studied in England where the oral arguments don't rely on briefs?)

Now, I totally get that the judge is treating this like oral argument. He asked hard questions of the defense, too. (IMHO, he exhibited much less skepticism, but whatever.) But, again to the extent the questions and the court's attitude were treated here on INGO like some sort of prophecy that the investigation is inappropriate, I find that hypocritical. If it were a Heller matter that the judge was considering, INGO would be up in arms (perhaps even literally) about it.

 

[T.Lex]

Dang.

This is a far more viable (IMHO) attack on Mueller's investigation.

http://thehill.com/opinion/white-ho...t-and-it-leads-directly-to-a-russian-oligarch

Not just because the oligarch in question is involved now, but also because Mueller may have been complicit in Oliver North-level shenanigans.

(As an aside, I'm EXTREMELY doubtful that Putin was unaware of this little plot. In fact, I think the oligarch would've cleared it with him. Which is further evidence that he's been playing the long game for quite awhile.)

I'm accepting that DC is a relatively small universe. So there will be some conflicty-type relationships that aren't actual conflicts. But this one, based on what's currently available, is pretty darn conflicty in my book.

 

[Fargo]

Yes, that page break is a one-line reference to historical fact. The investigation includes prior work by DOJ.

In terms of legislation from the bench - I don't believe he's issued the order yet, so we don't know for sure. My original post was intended to convey that, here at INGO, his questions would lead to dire warnings that the judge was trying to legislate from the bench.

Now, with the transcript handy:
- pg. 12 - judge telling the attorney what to argue (I hate it when they do that).
- pg. 12 - judge ranting about 'unfettered' power, when that's demonstrably untrue. "Arising from" while broader than "arising directly from" is not unfettered. It also strongly suggests that the judge believes he has the power to "fetter" the DOJ on this matter.
- pg. 13 - the ENTIRE budget/when will the investigation end questioning is inappropriate. None of his business. (I don't think ANY prosecutor would take that well.)
- pg. 13-14 - bizarre recitation of the 1990s era judicial conference when there was a statutory framework that DOESN'T EXIST now. Another clear indication that the judge is entertaining the same kind of restrictions in that previous legislation. Literally, considering legislating from the bench.
- pg. 17 - specifically rebuts the notion that they are out of bounds of their delegation of power. The judge might not like the result, but that shouldn't matter.
(-pg. 18 - Ok, you have to admit, the "I reminisce a lot." part is really really strange. He's a child of the 60s and studied in England where the oral arguments don't rely on briefs?)

Now, I totally get that the judge is treating this like oral argument. He asked hard questions of the defense, too. (IMHO, he exhibited much less skepticism, but whatever.) But, again to the extent the questions and the court's attitude were treated here on INGO like some sort of prophecy that the investigation is inappropriate, I find that hypocritical. If it were a Heller matter that the judge was considering, INGO would be up in arms (perhaps even literally) about it.

Are you really treating a freaking CFR as analogous to a constitutional provision? A CFR allegedly so insignificant that the government believes that federal judges don't even have authority to enforce/rule on it?

Seriously? Legislating from the bench? On a law that the executive branch claims it can unilaterally remove from the jurisdiction of the courts created by the constitution to resolve "cases and controversies"?

 

[T.Lex]

Are you really treating a freaking CFR as analogous to a constitutional provision? A CFR allegedly so insignificant that the government believes that federal judges don't even have authority to enforce/rule on it?

Oy vey.

"Heller matter" <> "Heller."

Heller opened the door - intentionally - for lower courts to fill in the blanks on what is 2A protected and what isn't.

Sorry I wasn't clear on the scale that I was talking about.

Seriously? Legislating from the bench? On a law that the executive branch claims it can unilaterally remove from the jurisdiction of the courts created by the constitution to resolve "cases and controversies"?

Wait.

What "law that the executive branch claims it can unilaterally remove...." It is a CFR. The gov't appears solid on the idea that the circuit court of appeals determined the scope thing isn't a defense to be raised. (No comment on the propriety of that doozie.)

It is an executive branch regulation, applied by the executive branch, and implemented by the executive branch. Yes. There are clear separation of powers issues there having the court determine the scope of the scope.

Do you not feel at all sympathetic to the DOJ's role in this? If not, I'm curious why.

 

[DoggyDaddy]

Lawyer fight!

 

[Fargo]

Oy vey.



Wait.

What "law that the executive branch claims it can unilaterally remove...." It is a CFR. The gov't appears solid on the idea that the circuit court of appeals determined the scope thing isn't a defense to be raised. (No comment on the propriety of that doozie.)

It is an executive branch regulation, applied by the executive branch, and implemented by the executive branch. Yes. There are clear separation of powers issues there having the court determine the scope of the scope.

Do you not feel at all sympathetic to the DOJ's role in this? If not, I'm curious why.

Did you read Shain? From where I sit, jurisdiction is pretty much always before the court. Shain had nothing to do with jurisdiction, it had to do with quashing subs/exclusion of evidence. The portion referred to by the DOJ also appears to be dicta as the court found actual compliance. Look at Caceres, another evidence case. The referenced exception only applies where the constitution or statute does not require compliance.

IMO, matters of authority to bring an action are fundamentally jurisdictional and always before the court. A court always has the power to consider whether an action is brought under legitimate authority. I believe there is law going way back on this, nevermind what due process requires. You can't duck that by hiding behind admin law.

I don't have much sympathy for the DOJ on this. The independent counsel statute is gone for a reason, replaced by CFRs which ostensibly don't create a new Ken Starr debacle. Now, the DOJ is basically saying gotcha, and guess what, you can't even ask a judge to enforce the regs we created.

I am honestly surprised Trump hasn't fired Sessions, Rosenstein, and Mueller.

 

[mmpsteve]

I think a lot of people are surprised by this. I mean, what does he stand to lose by firing them, compared with the obvious outcome of letting this continue ad-nauseum, until the persecutors find out he banged the 15 year old check out girl at the grocery store in 1975; obvious reason for impeachment. Ooops, that's classified. When the judge was talking about unfettered power of government, how does that work with Rosenstein's apparent unfettered ability to add to the scope of Mueller's investigation? And if Manafort committed such atrocities, where has the investigation been for the last freakin DECADE?

I admit I'm not the learned scholars many of you are, and I respect people who know the law better than I, but I gotta say, there's a whole lot of stench involved with this whole 'matter' and many of the individuals involved.

 

[T.Lex]

I can support removing Mueller because of the conflict.

On the other stuff, I think the DOJ is on solid footing - especially with Rosenstein approving the scope, to the extent that was necessary at all.

It is basically the DOJ outsourcing the investigation/prosecution. I don't see a problem with that in terms of due process.