The Department of Justice Screwed Up

I tuned in to the teevee last night to hear commentary on yesterday’s Supreme Court hearing, and instead I caught some of President Biden’s press conference in which reporters were grilling him to find out if he could find his own nose and maybe he should check into the old folks’ home already. That was when I learned about the Biden special counsel report.

Let’s just say I am beyond furious. I’m also done giving Merrick Garland the benefit of doubts.

Josh Marshall’s Thoughts on the Hur Report express it all pretty well.

First off, this is another example of the universal rule: Republican special counsels are chosen to investigate Democrats. And Republican special counsels are chosen to investigate Republicans. It may not have been a great idea for Merrick Garland to have a two-time Trump appointee investigate Joe Biden. But here we are. Robert Hur totally slimed Biden with these gratuitous comments about his mental acuity and memory, referring to him as a “well-meaning, elderly man with a poor memory.” Even if you assume they are the product of a good faith evaluation they are still wildly inappropriate.

DOJ guidelines make clear that if you’re not bringing charges you don’t bash the subject of the investigation in your announcement (a la James Comey). You certainly aren’t supposed to affirmatively attempt to demean the subject of the investigation with clearly political attacks that aren’t even related to what you’re investigating. Hur might as well have called him “Fake News Joe Biden.” It’s really that transparent and that bad.

I just learned this:

The descriptions in the report sound bad because they are designed to sound bad. These are from a five hour discussion the day after the October 7th attacks on Israel when I’m sure Biden was focused on that unfolding crisis. Without watching the interview we have no way of knowing whether these are representative of the tenor of the conversation or cherry-picked gotchas.

Merrick Garland should have not released a report that violated DoJ guidelines. Of course, if the final report had been re-written or redacted that would have caused no end of speculation about what was left out. But I think that would have been less damaging. Joe Biden is going to have to spend the next few months persuading the American people he’s not senile. Nobody needed this. Well, maybe Trump.

Members of the House already are calling for Biden to be deposed via the 25th Amendment provision in section 4. Fortunately the House has no part in that, so it’s not going to happen. And there may be time for some of the damage to be undone. We’ll see. And Joe Biden on his worst day is brilliant compared to Trump.

See also Robert Hur’s Box Checking at Emptywheel.

As far as the hearings yesterday are concerned, it’s pretty clear the justices aren’t going to side with Colorado. It was frustrating to hear them ignore the very real insurrection and Trump’s role in it. I don’t know that there’s much else to say.

With everything else going on you may not have heard what’s been happening with Loose Cannon and the Mar-a-Lago documents case. Loose had decided Jack Smith and his people must submit documents in the case without redacting witnesses’ names and other information that the government wants to keep private. Smith is arguing that making the names of witnesses public would expose them to “significant and immediate risks of threats, intimidation, and harassment.” Because that’s what happens with anything dealing with Trump. According to Forbes,

Among the documents prosecutors think should remain sealed or redacted are a list of all the FBI agents who searched Trump’s Mar-A-Lago estate; an excerpt from a witness’ grand jury testimony that reveals “non-public” details about Mar-A-Lago’s layout, including where Trump’s son Barron’s bedroom is; and reports on witness interviews, including of civil servants and “former close advisors to defendant Trump.”

One document at issue also includes details of “uncharged potentially obstructive conduct by a defendant, and speculation about witness tampering by an uncharged individual,” Smith wrote.

This is likely to drag on for a while, but eventually Jack Smith could appeal Loose’s decision to the 11th Circuit Court of Appeals. Yesterday Smith filed a brief with Cannon saying she had made a “clear error” in insisting that witness names not be redacted. Apparently the precedent is that such information may be redacted in discovery, which is the stage they are still in with that trial.

13 thoughts on “The Department of Justice Screwed Up

  1. With respect to the Hur report, this further from Marshall. Biden definitely has space to channel Harry Truman and give some people some Hell.

    Elsewhere I have seen the 11th Circuit's interventions against Cannon being described as "benchslapping," and they've created an impression that they have Jack's back against her more egregious shenanigans. He has a credible threat of getting what he wants anyway.

  2. This was Jim Comey redux.  The only positive thing is Biden has some time to blow up the narrative.  He made a great start in his press conference and his speech later t party members.

    The report was bad enough, but when I saw the press conference, and Biden choking up when he mentioned the claim that he couldn't remember his son's death, it brought tears to my eyes, then I was spitfire mad.  The cover characterization of the Hur report, just like how Barr characterized the Mueller report, didn't match what the report said.  How could Biden have willfully withheld documents when he called the FBI to come get them as soon as he realized they were in his possession?  No, they weren't prosecuting because as the report indicated, there was no evidence supporting prosecution, in accordance with DOJ standards.  Instead, Hur contradicts the report to give the republicans a talking point that they weren't prosecuting because Biden would cut a sympathetic figure as a forgetful old man.   This is bad on so many levels, an obvious political hit job.  

    I too used give Garland the benefit of the doubt and defend him against the so-called "do something!" caucus.  Not anymore.  Garland shows poor judgement in thinking that having a far right political appointee of the opposing party investigate the president is showing fairness and impartiality when there was nothing impartial about what Hur ended up doing.  And, with that being apparent, Garland failed at his job allowing this report to be published.  

    If Biden wins reelection as I believe he will, firing Garland should be a day one checklist item.   And he needs to hire someone who won't be afraid to stand up to the right.

    I get the politics and all that, but Biden needs an AG who is going to have the courage to follow DOJ practice and procedure, and not make exceptions to appease the right.

  3. Donald Trump fired James Comey for doing what Hur just did. Well, not really, but that was the excuse Trump used to fire Comey.

  4. "I’m also done giving Merrick Garland the benefit of doubts."

    Me Too! If Merrick Garland had an ounce of integrity he would resign, immediately. Enough, his tentativeness regarding charging Stump for J6 and Mara Largo has likely enabled Stump to appeal his way passed an election in November without facing a jury. Add to that this political hit job report (much of it reads like something Jim Hoft would put out). He’s the boss, surely he reviewed the report and approved it for release, so he may as well signed it himself. It is well past time for him to go. Unfortunately he has enabled the special counsel to reinforce a narrative for the GQP and Stump to use this election, quitting now may only make things worse. But I say fuck it, don't let the door hit you in the ass!

  5. There's a lot of left commentary that Special Prosecutors are always Republicans. Investigate a Democrat – appoint a Republican, same for investigating a Republican.

    Jack Smith is Independent.

  6. Josh M. suggests: "The White House will need to get Biden in front of interviewers, where he actually does quite well, and in widely seen venues, to counter it. It’s really as simple as that."

    I concur that the WH should, but it's not simple. Joe has a long medical history of hoof-in-mouth disease. However, he's relatable and likable. Plastic Joe is not, but they're gonna have to take the risk (and the hits) of occasional gaffes. Overall, I think Biden has his stuff together – there's something valuable about decades of experience. (Find me the medical patient facing risky heart surgery who doesn't want a surgeon with years of successful experience in the OR. Or do patients line up to be the first under the knife with the rookie out of Med School?

    Second, let Joe take the gloves off. He can hit Trump by pointing out how Rudy is disbarred and bankrupt, how other lawyers are being disbarred for ethical breaches in representing Trump, and how Bannon and Navaro are headed for jail. The rogues list of Trump's pals he pardoned in the final hours needs to be mentioned often. Until Trump is convicted, Biden can't go there, but all of Trump's associates who were convicted are fair game. I don't have it in front of me but revenue at the old Trump Hotel in DC has changed. Now that countries and special interests aren't putting money in Trump's pocket (the hotel was sold.) the revenue from those bribes dried up. And the practice of buying favors was addressed before the Bill of Rights was written – it's the Emoluments Clause in the Constitution. Joe can go there. 

    When I'm debating the fact that Trump lost the election, the most powerful single fact is that Trump lost in court 60 times, often with federal judges appointed BY Trump.  This really puts a dent in the argument that there was something biased in Trump's string of losses. Democrats can't trust MAGA Republicans – they shouldn't expect that they are capable of honor BUT, Democrats have to continue to expect that people in government should be honest and even-handed. We should be outraged by the lack of professionalism in the hit job that the Hur report was. BTW, Biden can (and should) emphasize that there won't be disciplinary measures taken against Hur beyond more carefully screening what cases get handed to Hur since he's proven his unprofessional bias. Contrast that with Trump firing federal officials who disputed Trump's wild claims of massive voter fraud that never was. 

    Just speculating, but is the "deal" in the USSC that they will reverse the decision in CO AND they will refuse cert in the absolute immunity appeal? I read speculation that the USSC would do that (or a variation of) to posture their decisions as "impartial."  IMO, there's not a court in the US (I mean a panel of judges, not an individual judge.) who would grant Trump unlimited lifetime immunity. So the conservatives in the court were offering nothing by offering a denial of immunity. But if the court denies Trump a hearing in a timely manner, they bounce the DC J6 case back to Chutkan almost as fast as the Harlem Globetrotters pass the basketball. If I was a liberal on the USSC (stop laughing – it's hypothetical.) I might take that deal. If the facts are presented to the public through the framework of a trial, Trump is toast. But it has to happen before the November election. So I'm holding my breath with a stopwatch in my right hand that starts on Monday the moment Trump files for an appeal of the unlimited immunity J6 case.

    Cannon decided today to give Trump two weeks to respond to Jack Smith's motion that she's full of sh^t in her previous decision. I expect she'll wait a month in total to respond. If she denies Smith, it goes for appeal to the 11th, possibly with a request to remove Cannon. Smith is not mincing words that Trump is only playing games to delay. I think Cannon is playing it cute – she's going to reverse herself in April and wait a month for Trump to send her the next delaying ploy. Depending on what the USSC has done with the DC J6 trial, Smith might take Cannon to task for being Trump's pet judge if she delays the case, even if she reverses herself. (That's if the USSC is not moving the J6 case forward – if that's freed up, Smith may leave the document case on hold.)

    I think next week there will be a hearing in GA about Willis and the motion that she's not allowed to have an affair. Frankly, if Cannon was smarter, she'd try to get her case out front and then prolong it to block the DC and GA cases. She still might do that but Smith is so far in front of her – she might not be able to put the brakes on the case. The obstruction aspect of the documents case is not something Trump will survive in November if it gets out there. So does Cannon see her role as preventing the documents case from proceeding or is she a "big picture" obstructionist who is looking at all three cases?

  7. If and when Garland tenders his resignation it should be followed by Ben LaBolt (WH comms director). How that moron let the president stand in front of the cackling press corp with zero preperation, zero organization, fucking communication malpractice. If Biden has one real fault is that he seems to hire some really shitty passive people. Blinken and Garland come to mind?  Passive liberalism has no place when it comes to dealing with the tabloid corporate media. His communication shop is a fucking joke. Time for a tune up.

  8. And just like THAT (snapping fingers) positive momentum, hope, and optimism are kneecapped.  WTF Garland?  So effing concerned to prove he is not biased by allowing bias may actually enable the end of American democracy.

  9. Me three!

    I refer, of course, to being crimson-hot after Red-state Rethug Herr (I'd like to…) Hur(…t him) wrote in his report about Joe and his son’s death!!!

    Herr Hur is a hurtful scumbag.

    Not enough bad sh*t can happen to hurt him!

    But sadly, not enough will.

    If anything at all…

  10. It looks like Cannon screwed up – maybe bigly. A very recent post on Medias Touch explains that Jack Smith filed a request with Cannon for her to reconsider a flawed decision that would make normally sealed (secret) information about testimony and witnesses in the Trump investigation public. Smith, before filing the motion for Cannon to check the SOP rule book for the 11th district, asked if he could send along for her eyes only, info regarding an active infestigation of threats against a known witness in the documents case – the very one she's screwing up. She said yes, send it along – sealed and ex parte – judges eyes only. That was today. This afternoon she reclassified the attachment as sealed only and ordered Jack Smith to send secret info on a criminal investigation of intimidating a witness TO TRUMP by tomorrow! 

    Maybe I'm misreading this – I am not a lawyer. I think Cammon is furious that Jack Smith is questioning her bad decision. "How DARE you!" So this is an emotional act of retaliation by the judge. Depending on the details in the document, Trump may instruct people how to avoid detection and/or prosecution for threatening witnesses. Smith wanted Cannon to appreciate that Trump's minions can, will, and are making death threats. In the interests of justice, it's SOP to withhold this stuff at this stage and only release what info will be part of the trial and not so far in advance that a defendant with unlimited resources can get to witnesses. 

    Smith has been approaching Cannon as if she can be educated. He could have gone straight to the 11th with the Wednesday decision but he's mostly said, "Hey, judge! Look again because you got it wrong and I got the goods." Allowing her to reverse herself and stop an appeal to the 11th. I smell a streak of narcissism from her – the question is how Smith will respond. He's almost Vulcan in his submissions. Will he decide Cannon is beyond redemption and this insult (if I read it right) needs to go to the 11th with no foolin' around? 

  11. Until the SCOTUS rules on the IOKIYAR doctrine, I guess special prosecutors get to slime with abandon…only if they are registered republicans of course.  

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