Rod Rosenstein's Abdication

The Washington Post has just broken the story that Deputy Attorney General Rod Rosenstein, for fear of losing his job, assured President Trump that Mr. Rosenstein was on the president's team, that he would "land the plane"  (ie. the Mueller investigation) and that the president was not the target of the probe. That disclosure explains why Mr. Rosenstein abetted Attorney General William Barr in "exonerating" Mr. Trump despite overwhelming evidence of obstruction and why he is now attacking the media and the Obama administration.

It is now imperative that Congress find out whether and how often Mr. Rosenstein met with Special Counsel Mueller, what was discussed and whether Rosenstein gave him any directions or imposed any limitations on the investigation. It is high time we heard from Mr. Mueller himself.

Risk of Impeachment

A careful reading of the Mueller Report establishes that President Trump and members of his campaign engaged in serious misconduct, Attorney-General Barr's woeful spin notwithstanding. Whether criminal charges could or should have followed may be open to debate but there can be little doubt that the behavior documented in the Report is wholly unacceptable, unpresidential and threatening to the rule of law. 

In a normal political world that misconduct would warrant and result in impeachment. Today's Republican senators, fearful of retaliation from Trump and his base, will not vote for conviction, however compelling the evidence, and a failed effort will only increase the prospect of Trump's reelection. Democrats must convene and conduct extensive and probing hearings which surely will reinforce and fill out the detail of Mueller's findings. Such hearings will also more fully inform the American public of the immensity of the President's wrongdoing and distain for truth.

Perhaps then, Republicans will be moved to put country before self-interest and vote to impeach for obstruction of justice, lying and abuse of power. Short of that, perhaps they will muster the courage to protect the national interest by, at least, voting to censure. Anything less will be taken as acceptance and approval of the notion that the president is above the law

If Prisons Aren't the Answer, What Is?

The title of Emily Bazelon’s thought-provoking Op-Ed in the Sunday Review (April 7), poses an intriguing question. Unfortunately, her article fails even to attempt an answer. The points Ms. Bazelon makes are all valid: poverty should not be prosecuted; offenders can be rehabilitated and released; there is a need for more drug addiction treatment, better and increased therapy for the mentally ill and job training and affordable housing to give released prisoners an improved ability to cope and avoid rearrest.
But what is an acceptable alternative to incarceration for persons who violate society’s strictures yet pose minimal risk to public safety? I suggest a program akin to the Civilian Conservation Corp and the Works Progress Administration which, in the depth of the Great Depression of the 1930’s, provided employment that ranged from manual labor to artistic creation. These programs gave structure, training and self-respect to millions of unemployed Americans, qualities essential to reformation of antisocial behavior, even as they provided much needed repair and rebuilding of the nation’s deteriorating infrastructure.

Lawmakers Reach Deal to End Cash Bail

The NYS Legislature appears to be on the verge of significant reformation of the criminal justice system (NYTimes, 3/30, A.24). Certainly there is an urgent need to end solitary confinement, a condition found akin to torture, to expand and expedite discovery in criminal proceedings and to insure speedier trials so that non-convicted persons do not languish in jail.

But the most challenging issue has been abolition of bail, a procedure which disproportionately imprisons the poor and minorities. The stumbling block to revision or repeal of the bail system has been disagreement about the standards to be used by courts in deciding who should be released and who should be held. One side argues that accused persons should be released without regard to risk of flight (the current test in New York) and without considering the risk to public safety (the "danger" factor used by federal courts and many states). Those resisting total elimination of cash/bond bail insist that judges should weigh the danger to the community of unconditional release.

History demonstrates that most defendants released without bail will return to court and will not engage in violence in the interim. Clearly, release without bail is the fair and preferred approach. However, it would be a mistake to legislatively prohibit judges from considering the risk of harm. While that determination may, indeed, be "subjective" it can be appropriately delimited by objective tests including the nature of the crime, the existence of documented threats and the defendant's mental state and criminal history.

The compromise apparently reached by lawmakers, to exclude serious crimes and those involving violence, may be a reasonable temporary solution. A permanent fix must provide for a rational way to assess the risk of release to public safety.

Effects of the Mueller Report

Political pundits are in agreement that President Trump and Republicans will use the outcome of the Mueller investigation as a cudgel in the 2020 election. In fact, that assault has already begun. It includes Mr. Trump’s vitriolic outburst calling the investigation a failed “illegal takedown “, Sara Sanders’ claim that the Democrats wasted two years and millions of dollars and Sen. Lindsay Graham’s call for an investigation of the investigators and renewed pursuit of Hillary Clinton.
The obvious response to these incredulous contentions is that the Mueller investigation was initiated by a Trump appointee, Ass’t. AG Rob Rosenstein after Republican James Comey was fired as FBI Director for looking into Russia-Trump campaign ties and was led by lifelong Republican Robert Mueller.
While Democrats had an obvious rooting interest in Mueller’s inquiry and did what they could to protect his tenure, it turns truth on its head to claim that the whole exercise and its costs are, somehow, attributable to Democrats.
Furthermore, to characterize as a waste of time and money an investigation which conclusively proved that the Russians had seriously interfered in our election and which brought to justice a clutch of high ranking Trump campaign and administration officials for criminal misconduct, is perverted and dishonest.
Presumably, we will learn, in the days to come, the details of Mueller’s findings, the full scope of disclosures made by Michael Cohen, Michael Flynn, Rick Gates and others, and of the actions taken by other investigative bodies including federal and state prosecutors and Congressional committees. And we will learn whether a true waste of time and money will be incurred in pursuit of Sen. Graham’s fishing expeditions.
In the meantime Congress must act to protect our democracy from further incursions by Russian hackers and Bots into our next election.

The Mueller Report

Against all expectations, based upon the summary just provided by Attorney General William Barr, Special Counsel Robert Mueller  has concluded that there is no evidence of any conspiracy between the Trump campaign or any persons associated therewith and the Russians to effect the 2016 election. On the issue of obstruction Mueller punted, reporting that he reached no conclusion one way or the other and left the decision, to be based on the information furnished, to Justice Department officials. Attorney General Barr, in consultation with Asst. AG Robert Rosenstein, has decided that President Trump should not be charged with obstruction based upon his review of the evidence and without regard to the question of whether a sitting president can be criminally prosecuted.

Mr. Barr, in deciding the obstruction issue, says he relies upon the absence of any underlying crime which might have been the subject of an attempt to obstruct. Also cited is the fact that much of the allegedly obstructive behavior took place in public and, therefore, was not corruptly motivated.

We may conclude from this that one may impede an investigator from obtaining evidence of criminal misconduct so long as the obstruction is transparent and successfully prevents the acquisition of evidence necessary to prove an underlying crime.

The Manafort Sentence

During the trial of Paul Manafort Judge T.S. Ellis III acted injudiciously by wrongly commenting on the evidence and expressing his opinion as to the credibility of a witness in the presence of the jury thus, improperly, encroaching upon the province of that body as the finder of fact. Judge Ellis exhibited open hostility to the prosecution and an irascible temperament unbecoming a jurist. 

Therefore, it is not surprising that Judge Ellis has further demonstrated his lack of fitness by inexplicably characterizing the life of Mr. Manafort as "blameless" and by imposing a sentence of such unwarranted leniency as to virtually obliterate the Sentencing Guidelines. Such an unjustifiably short prison term calls into question the even-handedness and impartiality of our system of justice. Judge Ellis has done a great disservice to the rule of law. Hopefully, Judge Jackson will act more appropriately when sentencing Mr. Manafort next week.