Trumps Attorneys: Refuse Russiagate Inquiry Interview

Apparently realizing that their client is a pathological liar and likely has something to hide - perhaps a very great deal to hide - Donald Trump's attorneys are telling him to refuse to be interviewed by Robert Mueller's Russiagate investigation team.  No doubt Trump's attorneys have visions of charges of lying to the FBI and/or damaging admissions.  Of course, should Trump refuse to voluntarily agree to the interview, he could find himself facing a grand jury subpoena which could set the stage for contempt charges if he ignores the subpoena or perjury charges if he lies under oath.  Another option is for Trump to appear before the grand jury and invoke the 5th Amendment and refuse to testify.  The political fallout of such an action, however, would be the assumption in the minds of many - perhaps a great majority - Americans that invoking the 5th Amendment is tantamount to an admission of guilt.  A piece in the New York Times looks at the tightening noose around Trump.  As Richard Nixon learned, even the occupant of the White House is not exempt from a grand jury subpoena,  Here are article highlights:

Lawyers for President Trump have advised him against sitting down for a wide-ranging interview with the special counsel, Robert S. Mueller III, according to four people briefed on the matter, raising the specter of a months long court battle over whether the president must answer questions under oath.

His lawyers are concerned that the president, who has a history of making false statements and contradicting himself, could be charged with lying to investigators.

Mr. Trump’s decision about whether to speak to prosecutors, expected in the coming weeks, will shape one of the most consequential moments of the investigation. Refusing to sit for an interview opens the possibility that Mr. Mueller will subpoena the president to testify before a grand jury, setting up a court fight that would dramatically escalate the investigation and could be decided by the Supreme Court.

Rejecting an interview with Mr. Mueller also carries political consequences. It would be certain to prompt accusations that the president is hiding something, and a court fight could prolong the special counsel inquiry, casting a shadow over Republicans as November’s midterm elections approach or beyond into the president’s re-election campaign.

The lawyers and aides believe the special counsel might be unwilling to subpoena the president and set off a showdown with the White House that Mr. Mueller could lose in court.

One of the few voices arguing for cooperating with Mr. Mueller is Ty Cobb, the White House lawyer whom Mr. Trump also brought on to deal with Mr. Mueller’s investigation. Since Mr. Cobb was hired in July, he has argued that the White House should do everything possible to cooperate with Mr. Mueller’s investigation.

Others close to Mr. Trump have also cautioned him against a freewheeling interview. Marc E. Kasowitz, the president’s longtime personal lawyer from New York who initially dealt with the special counsel after Mr. Mueller took over the Russia investigation last May, has also consistently said that the president should not agree to the interview.

Newt Gingrich, the former House speaker and an informal adviser to Mr. Trump, echoed that advice.   “The idea of putting Trump in a room with five or six hardened, very clever lawyers, all of whom are trying to trick him and trap him, would be a very, very bad idea,” Mr. Gingrich said last month on “Fox and Friends.”

Richard M. Nixon refused to turn over to the special prosecutor investigating him tapes of incriminating conversations with aides. The matter eventually went before the Supreme Court, which ruled in 1974 that the president, like every American, was not above the law and had to comply with the special prosecutor’s request.

“The upshot of the Nixon tapes case was that any president is going to have an extremely hard time resisting a request from a law enforcement officer,” said Neal K. Katyal, an acting solicitor general in the Obama administration and a partner at the law firm Hogan Lovells. . . . . running away from a prosecutor isn’t consistent with faithfully executing the laws.”

Mr. Trump’s penchant for bravado has been a factor that his lawyers must contend with. The president has bragged to some aides that he would be able to clear himself if he talked to Mr. Mueller’s team.

When pressed, he also said he would be willing to be questioned under oath. Questioning by Mr. Mueller would not be under oath, though lying to federal investigators is a crime.

Privately, people close to the president have conceded that assuring Mr. Trump that the investigation would end by a certain date was primarily aimed at keeping him from antagonizing Mr. Mueller on his Twitter feed or in interviews.

Trump needs to testify and if he lies (something that I view as a foregone conclusion), he needs to be charged with crimes and removed from office.  

Mueller Subpoenas Bannon in the Russia Investigation

The Russiagate investigation took a new turn today as Robert Mueller issued a grand jury subpoena to Steve Bannon even as Bannon was slapped with a subpoena by the House Intelligence Committee when he refused to answer questions during his questioning by the Committee.  Said refusal was purportedly at the direction of the White House.   While the Mueller subpoena suggests that Bannon is not a target in the investigation, it ups the risk to Bannon should he refuse to cooperate or answer questions.   Should he refuse to testify to the grand jury, he would face contempt charges.  Should he lie to the grand jury, he would be guilty of perjury and the consequences could be even worse.   One can only hope that Bannon will decide that it is in his best interest to cooperate and, if need be, throw Trump and others on the White House staff under the bus.  In short, self-preservation should motivate Bannon to "do the right thing" and testify fully.  Here are excerpts from the New York Times on this development:

Stephen K. Bannon, President Trump’s former chief strategist, was subpoenaed last week by the special counsel, Robert S. Mueller III, to testify before a grand jury as part of the investigation into possible links between Mr. Trump’s associates and Russia, according to a person with direct knowledge of the matter.

The move marked the first time Mr. Mueller is known to have used a grand jury subpoena to seek information from a member of Mr. Trump’s inner circle. The special counsel’s office has used subpoenas before to seek information on Mr. Trump’s associates and their possible ties to Russia or other foreign governments.

The subpoena could be a negotiating tactic. Mr. Mueller is likely to allow Mr. Bannon to forgo the grand jury appearance if he agrees to instead be questioned by investigators in the less formal setting of the special counsel’s offices about ties between Mr. Trump’s associates and Russia and about the president’s conduct in office, according to the person, who would not be named discussing the case.

The subpoena is a sign that Mr. Bannon is not personally the focus of the investigation. Justice Department rules allow prosecutors to subpoena the targets of investigations only in rare circumstances.

On Tuesday, Mr. Bannon testified behind closed doors before the House Intelligence Committee, which is also investigating Russia’s meddling in the 2016 election and ties between the Trump campaign and Russia. Mr. Bannon did not address reporters before entering the proceeding on Tuesday, and a spokesman for Mr. Mueller and a senior White House lawyer did not respond to messages seeking comment.

Some legal experts said the subpoena could be a sign that the investigation was intensifying, while others said it may simply have been a negotiating tactic to persuade Mr. Bannon to cooperate with the investigation. The experts also said it could be a signal to Mr. Bannon, who has tried to publicly patch up his falling-out with the president, that despite Mr. Trump’s legal threats, Mr. Bannon must be completely forthcoming with investigators.

“By forcing someone to testify through a subpoena, you are providing the witness with cover because they can say, ‘I had no choice — I had to go in and testify about everything I knew,’” said Solomon L. Wisenberg, a prosecutor for the independent counsel that investigated Bill Clinton when he was president.

Significant grand jury activity may undermine the case that White House officials have made for months: that they believe the inquiry is coming to an end and are convinced that the president will be cleared. Mr. Mueller has told Mr. Trump’s lawyers that he will probably want to question the president before the investigation concludes, but no interview has been scheduled.

Mr. Bannon has limited firsthand knowledge about two key issues within Mr. Mueller’s purview — the president’s firing of James B. Comey as F.B.I. director, a decision made without Mr. Bannon present, and the drafting of a misleading statement about the subject of the June 2016 meeting with Russians, in which they promised damaging information about Hillary Clinton.

But even Mr. Bannon’s secondhand knowledge could be used to draw a contrast with statements from people with firsthand knowledge whom Mr. Mueller has already interviewed. And Mr. Bannon was directly involved in a number of other major moments, including the decision-making around the firing of Michael T. Flynn . . . And Mr. Bannon was the chief executive of the Trump campaign in October 2016 when WikiLeaks began releasing thousands of stolen personal emails from the hacked account of Mrs. Clinton’s campaign chairman, John D. Podesta.

In “Fire and Fury,” Mr. Bannon was quoted by the author, Michael Wolff, as suggesting that Donald Trump Jr.; the president’s son-in-law and senior adviser, Jared Kushner; and Paul Manafort, his campaign chairman at the time, were “treasonous” and “unpatriotic” for attending the meeting with Russians at Trump Tower. Mr. Bannon said that he believed there was “zero” chance that the younger Mr. Trump did not take them to meet his father, who has said he knew nothing about the meeting.

The president appeared to ease his anger toward Mr. Bannon at the end of last week. People close to Mr. Bannon took the president’s comments as a signal that Mr. Trump was aware that his fired strategist would soon be contacted by investigators.

Mr. Bannon has hired William A. Burck of the Washington office of the Quinn Emanuel Urquhart & Sullivan law firm to represent him in the defamation threats from Mr. Trump and the congressional inquiries.

The Alternate Universe of Fox News; Buckley on Trump

My firm's office that I principally work out of is located in a business suites complex with numerous other tenants, including close to a half dozen other law firms.  Over all, it is a mixed group of tenants, all of whom share a kitchen/lounge area with a TV in it, as well as the large central printer/copier. During the 2016 election, there was an unspoken battle as to what channel would be on: Fox News, a/k/a Faux News, CNN or MSNBC, with people regularly changing the channel to their preferred channel.  Interestingly, now the TV remains almost always set to CNN or MSNBC.  Fox News, much more rarely.  On the increasingly rare occasions when the TV is tuned to Fox News, the best way to describe the coverage is as an alternate universe where major stories and facts are simply not reported.  Indeed, Fox News might as well be Russian state controlled television insofar as only right wing affirming coverage is aired.  A case in point was yesterday when news was breaking about Robert Mueller's empaneling of a DC based grand jury.  A New York Magazine headline says it all: " CNN: Grand Jury. MSNBC: Grand Jury. Fox News: Literally Anything Else."  The Founding Fathers believed that it was critical that the country have an informed electorate and that citizens had a duty to be well informed on the issues and events of the day.  One does NOT fulfill that duty watching Fox News.  Here are excerpts from the New York Magazine piece:

Earlier on Thursday, The Wall Street Journal reported that Special Counsel Robert Mueller has impaneled a grand jury as part of his ongoing investigation into Russia’s interference in the 2016 election. (The White House, for its part, just keeps reiterating that Donald Trump is not under investigation and plans to fully cooperate with Mueller.) The WSJ called it “a sign that his inquiry is growing in intensity and entering a new phase.” This is, clearly, big news. The kind of news that major networks should be talking about. . . . Frankly, once you’ve read The Wall Street Journal report about the grand jury, you might want to tune into Fox News. Seems like they’re running some very fun segments this evening.

If - or more likely when - indictments come, Fox News viewers will no doubt be in shock and ask "how did this happen."  For racists, religious extremists, and xenophobes, Fox News has become a way to stick one's head in the sand and ignore reality.

Meanwhile, some conservative outlets are reporting on the real Donald Trump.  A case in point is Red State which has a timely piece that reveals what William F. Buckley - an icon to thinking conservatives (admittedly a vanishing species) - thought of Der Trumpenführer, none of it good. Here are highlights:

There has been a lot of discussion in the last several months over whether not several conservative icons would be supporting Donald Trump for President. William F.  Buckley, the founder of National Review and host of Firing Line said during the 1964 GOP primary that his rule was to support the “most rightward viable candidate.” That has often been turned into “the most conservative, electable candidate.” 

Willam F. Buckley wrote something about Donald Trump when he was talking about running for President — in 2000. Buckley, in an essay he wrote for  Cigar Aficionado and said the following about Trump:

Look for the narcissist. The most obvious target in today’s lineup is, of course, Donald Trump. When he looks at a glass, he is mesmerized by its reflection. If Donald Trump were shaped a little differently, he would compete for Miss America. But whatever the depths of self-enchantment, the demagogue has to say something. So what does Trump say? That he is a successful businessman and that that is what America needs in the Oval Office. There is some plausibility in this, though not much. The greatest deeds of American Presidents — midwifing the new republic; freeing the slaves; harnessing the energies and vision needed to win the Cold War — had little to do with a bottom line.

Wow. He wrote this sixteen years ago. And think about it. Some of our most pressing concerns right now have to do with foreign policy and and national security. Trump’s business acumen, however questionable, is worthless in such cases.

And he wasn’t finished:

In the final analysis, just as the king might look down with terminal disdain upon a courtier whose hypocrisy repelled him, so we have no substitute for relying on the voter to exercise a quiet veto when it becomes more necessary to discourage cynical demagogy, than to advance free health for the kids. That can come later, in another venue; the resistance to a corrupting demagogy should take first priority.

Finally, he illuminated Trump’s narcissism by comparing him with Steve Forbes:

So what else can Trump offer us? Well to begin with, a self-financed campaign. Does it follow that all who finance their own campaigns are narcissists? At this writing Steve Forbes has spent $63 million in pursuit of the Republican nomination. Forbes is an evangelist, not an exhibitionist. In his long and sober private career, Steve Forbes never bought a casino, and if he had done so, he would not have called it Forbes’s Funhouse. His motivations are discernibly selfless. . .

Buckley, a New Yorker, had more of an insight into Trump than others. At the time Trump wasn’t known to the rest of the country beyond people knew he was some rich businessman. Buckley however, was privy to the nonsense Trump engaged within NYC and Buckley was just well aware of it. Whatever it was, he had Trump pegged.

Mueller’s Use of Grand Jury Confirms What We Already Knew

Two demagogues, two liars, two mentally unstable men

Tonight Trump was in West Virginia ranting that the entire Russian investigation is a lie and utter fabrication and whined about the FBI's failure to prosecute Hillary Clinton and numerous insane claims.  Indeed, in his remarks, Trump seem to advocate for a dismantling of the rule of law. Meanwhile, word is out today that special prosecutor Robert Mueller has impaneled a second grand jury, in the District of Columbia, to further probe potential witnesses and  to subpoena documents from individuals and institution that would otherwise refuse to produce documents and information.  Having worked with the FBI and the U.S. Attorney's office on more than one occasion, few things are more intimidating than receiving a subpoena from those offices.  Short of an attorney client privilege situation, you will turn over requested documents.  Just as important, witness will be forced to choose between protecting themselves and avoiding perjury charges or lying for Trump and his sycophants.   Of course, as a column in the Washington Post points out, none of this should come as a surprise.  I have always believed that Trump was dirty - not to mention a pathological liar - and Mueller's investigation is going to find something damning. Here are column excerpts:

Breathless tweets and breaking-news banners notwithstanding, reports that special counsel Robert S. Mueller III has empaneled a grand jury in the ongoing investigation of the Trump campaign and potential Russian collusion are entirely unsurprising. This development isn’t a nothing-burger, but it doesn’t suggest anything we didn’t already know.

The grand jury has the subpoena power that prosecutors need to compel reluctant witnesses to testify under oath. Grand jury subpoenas are also how prosecutors gather documents such as bank records, emails and corporate papers from entities or people who might not produce them voluntarily.

If a preliminary inquiry suggests there is nothing to a case, prosecutors might never empanel a grand jury. They and the FBI might conduct voluntary interviews, examine readily available documents and determine that no more formal inquiry is warranted.

It’s been clear for months that the allegations are sufficiently serious to merit a full investigation. And in the world of federal prosecutors, that means using a grand jury. . . . In fact, prosecutors in this probe have been using a grand jury for some time. Grand jury proceedings take place in secret, so there is often not a lot of news about what is happening in the room.

The reality is that any investigation serious enough to warrant the appointment of a special counsel was always likely to involve a grand jury. It was always going to drag on for months. In a case this complex, it takes a long time to investigate the various allegations, subpoena and review relevant documents, and put relevant witnesses before the grand jury. If there are grants of immunity or plea deals to be negotiated, that takes time as well.

Mueller has already hired more than a dozen prosecutors to staff his investigation. Anyone who thought this was going to be over quickly was kidding themselves. The “news” confirms what we already knew.

In the past weeks, there have been a number of startling and significant developments in the Russia probe. News that the special counsel is using a grand jury is not one of them.

I sincerely hope that Mueller finds enough evidence of crimes on Trump's part to drive him from office either via resignation or impeachment.  As for Mike Pence, I continue to believe that he is not the unknowing "Sergeant Schultz" that he claims to be.  He needs to go down with Trump. 

Stopping Police Abuse of Black Men

Eric L. Adams, Brooklyn borough president and a retired New York Police Department captain, has an op-ed in the New York Times that is a must read.  It looks at the ongoing problem of police brutality against black males, many of whom lack the resources to take effective action against abusive police, assuming they survive the encounter.  Just as the police (all of whom were white, by the way) I encountered in Norfolk 10 years ago thought harassing a gay was fine - good sport even - too many police see blacks as targets they can abuse with impunity.  They see them - and in some cases, gays - as "other" and less than human and deserving of abuse.  Some of the comments made by Darren Wilson about Michael Brown exemplify the problem.  What's equally disturbing is the fact that police internal affairs departments seek first and foremost to protect the police officers and care nothing for the rights of the abused citizens.  I learned this truth first hand. Here are op-ed highlights:

I CAN recall it as if it were yesterday: looking into the toilet and seeing blood instead of urine. That was the aftermath of my first police encounter.

As a 15-year-old, living in South Jamaica, Queens, I was arrested on a criminal trespass charge after unlawfully entering and remaining in the home of an acquaintance. Officers took me to the 103rd Precinct — the same precinct where an unarmed Sean Bell was later shot and killed by the police — and brought me into a room in the basement. They kicked me in the groin repeatedly.

For seven days after that, I stared into the toilet bowl in my house at the blood I was urinating. I kept telling myself that if it didn’t clear up by the next day, I would share this shame and embarrassment with my mother, although I could never bring myself to start that conversation.

As I attempted to put that shame and attack on my manhood away, new horror stories kept compelling me to relive those memories: the nightmare experiences of Randolph Evans, Patrick Dorismond, Abner Louima and countless other young men have reminded me of my own secret. Think of all the secrets that young men of color are hiding. How many are concealing some dark truth of the abuse they endured, and what is that darkness doing to them?

In order to finally bring this darkness into the light of day, our nation must address the foundation of this crisis. That starts with acknowledging that the training taught in police academies across the country is not being applied in communities of color. After six months in the police academy, that instruction is effectively wiped out by six days of being taught by veteran cops on the streets.

They started their shift on the defensive, thinking about protecting themselves, as opposed to the communities they served, regardless of the complexion of those communities. One of my white fellow officers once told me that if he saw a white individual with a gun, he took extra care for himself and the individual. When he saw a black individual with a gun, he took care only for himself.

These are the lessons to which I was exposed, and the reality of what policing communities of color has been, not just in New York City but across America. There is a legacy of inequity that did not just appear overnight, but was carved into the culture of law enforcement over decades.

There is reluctance on the part of police leadership, which has long believed in the nightstick and quick-trigger-finger justice, to effectively deal with officers who have documented and substantiated records of abuse. These individuals need to be removed from the force. That is an essential component of the larger response we must have to address this history of abuse.

We cannot continue to approach policing in an antiquated fashion, and that certainly includes technology. Technology has been used as a crime-fighting tactic, but not as a tool to determine what happens during a police action. New York City has taken the right step in putting body cameras on police officers, but what about cameras on guns themselves?

Equally important, especially in the wake of what has taken place after the deaths of Michael Brown and Eric Garner, is reform to our grand jury system. Grand juries were established in England in the 12th and 13th centuries, a vestige of a time when people needed to be protected from unfair prosecution from the king and others. There was a necessary element of secrecy — one that need not apply in cases involving police misconduct.

Open, preliminary hearings in court can and should determine if a case should be stepped up to a trial. Additionally, the handling of police shootings should be wholly separated from local grand juries. These bodies cannot handle cases involving local police officers on whom they rely every day.

Special grand juries should be convened for police-related incidents, and independent agencies must gather evidence even before they convene, at the time of police encounters where a death has occurred  . . .

All of these ideas need to be moved forward under the leadership of our president, our governors, the mayors of our major cities and our law enforcement leadership. If we fail to take advantage of this moment that history has laid on our doorstep, we are doomed to more abuse, more division and more chaos.

When my son was 15, he was stopped by the police in a movie theater for no apparent reason. He showed his ID and explained that his father was a retired police captain and a state senator. The response was “So what?” It doesn’t and shouldn’t matter who he is. He shouldn’t have had that experience at all. And until that changes, for all men of color, real reform will never come.

I have a good friend who is black and in local law enforcement and even he has said that when he is out of uniform he worries about what could happen to him because of his skin color should he encounter the wrong police officers, especially late at night.  That is very frightening. 

Another Dead Black Man and No Indictment

After the evens in Ferguson and the blatant manipulation of the grand jury process to basically insure that no indictment would be handed down, it's stunning to see the same apparent result happen in New York City where police who basically strangled to death Eric Garner, a 43-year-old asthmatic, will faces no charges whatsoever - not even involuntary manslaughter.  No charges at all.  It's sadly part of a long trend where police avoid the charges that would be handed against the rest of us.  And for many blacks, it is yet further proof that their lives mean nothing in America's justice system.  A column in the Washington Post looks at this latest grand jury fiasco.  Here are highlights:

After a New York grand jury failed to indict a police officer in the death of a Staten Island man, protesters hit the streets of Manhattan and at least seven other U.S. cities. There were no reports by early morning Thursday of significant violence, in contrast to the looting and arson that broke out Nov. 24 in Ferguson, Mo., after a grand jury there declined to indict Darren Wilson, the officer who fatally shot unarmed teen Michael Brown on Aug. 9.

A wave of protests erupted from Manhattan to Oakland, Calif. Thousands in New York marched in support of Eric Garner, a 43-year-old asthmatic who died after being put in a chokehold by officer Daniel Pantaleo on July 17.

They shut down the Lincoln Tunnel. They shut down the West Side Highway. They shut down the Brooklyn Bridge, where officers threatened them with arrest if they did not move as a helicopter hovered above.

And they chanted the slogan heard around the country after Brown was killed by Wilson in Ferguson — “Hands up, don’t shoot” — as well as what may have been Garner’s last words: “I can’t breathe.”
“The lives of black young men, black children, they matter,” protester Florence Johnson told CBS at Times Square.

Garner, a father of six and grandfather of two, died July 17 after Officer Daniel Pantaleo placed him in what appeared to be a chokehold during an arrest that was recorded on videos that have been widely seen and have contributed to the public anger.

The grand jury decision that prompted Attorney General Eric H. Holder Jr. to announce the opening of a federal civil rights investigation.

President Obama, speaking earlier at an event in Washington, declined to comment specifically about the Staten Island case, referring instead to his plans to promote better relations between police and those they serve.
“I came down here because I’m disgusted about what happened,” said Edward Collins, a 19-year-old protester, told the San Francisco Chronicle. “It’s beyond a race thing to me. No matter what race you are, no one has the right to murder you.”

“Black lives do not matter in this system,” Dean Steed, one of the organizers of about 150 protesters in Atlanta, told the Atlanta Journal-Constitution. “And we’re out here for black lives.”

We are certainly providing America's enemies with plenty of propaganda to throw back when America tries to criticize human rights abuses in other countries.  I suspect that Vladimir Putin has a huge smile on his face right now. 

The Questions No One Asked Ferguson Prosecutor Bob McCulloch

I promise that, barring unexpected developments, this will be the last post on Ferguson, Missouri and the shooting death of Michael Brown.  Being an attorney and part of the legal system, if you will, I continue to be very disturb by the travesty that took place in the grand jury presentation and the way in which prosecutor Bob McCulloch seemed to bend over backwards to make sure that no indictment would be handed down against police officer Darren Wilson.  Two articles focus on McCulloch's manipulation of the grand jury process and the questions that should have been ask but which were not asked.  The take away?  McCulloch did not want an indictment and he did all in his power to guaranty that result.  The entire process was a travesty.  The first is from Salon.  Here are highlights:

St. Louis County prosecutor Robert McCulloch’s decision to “open up” the grand jury proceedings by including massive amounts of testimony and evidence has been decried as “highly unusual,” “deeply unfair,” and evidence that police officer Darren Wilson received “special treatment.” McCulloch’s move to include a good deal of exculpatory evidence and testimony led to a three-month, closed-door proceeding that included 70 hours of testimony, including 60 witnesses and three medical examiners. The breadth of the evidence presented to the grand jury has led many to declare that it turned the entire proceeding into something that walks and quacks an awful lot like a trial, but without many of the procedural rules that would make a trial truly fair.

This move to morph a grand jury inquiry, which is typically a short rundown of the case for the prosecution, into a trial-like parade of mountains of evidence raises serious issues about the rights of Michael Brown’s family to have a fair process for their dead son, as well as highlighting concerns about unequal treatment of different kinds of criminal defendants. But seemingly lost in this jumble of legal concerns is the fact that McCulloch’s decision to shift the truth-seeking function of a criminal trial into the secret realm of the grand jury room violated another set of constitutional rights—ours. It violated our collective public right to an open criminal justice system. And if ever there was a trial to which Americans deserved a meaningful right of access, Wilson’s trial was it. Instead, we have a post-hoc document dump.

In the 1980 case of Richmond Newspapers v. Virginia, the Supreme Court declared that the press and public have a First Amendment right of access to criminal trials.  . . . Public access to court proceedings is one of the numerous ‘checks and balances’ of our system, because ‘contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.’ ” This right of open trials belongs not just to the accused but to all of us. It is, the Supreme Court said in the 1986 case Press Enterprise v. Superior Court, “a shared right of the accused and the public, the common concern being the assurance of fairness.” 

Think about the closed doors in Ferguson these past months as you reflect on what Chief Justice Warren Burger famously explained: “When a shocking crime occurs, a community reaction of outrage and public protest often follows. Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion.”

There's more, so read the entire article.  The second piece is in Daily Kos.  Here are relevant excerpts:

Following his long public hand washing and cheerful mocking of witnesses, St. Louis County Prosecutor Bob McCulloch stood by for a few minutes of questioning. It was a frustratingly brief exchange, during which McCulloch was three times asked the one question that McCulloch had already said he could not answer: what was the actual vote count on the charges before the grand jury.

Thank you, "professional reporters" for wasting this unique opportunity to clear up a few matters.
But there are a few things they could have asked McCulloch. Things that needed to be said in front of a national audience:

First, instead of asking McCulloch the vote breakdown, they might have asked him this:
Question: How many charges was the jury asked to consider, and how many would have needed to vote against any charge to keep it from becoming a "true bill" of indictment?

Answer: Infinite, and four

McCulloch gave the jury no instruction on what charges they should consider. Many sources have said that the jury could have considered first degree murder, second degree murder or various levels of manslaughter. True enough. They might have also considered illegal discharge of a firearm. Or assault.  Or more or less anything.

Giving the grand jury no instruction is equivalent to throwing them into the deep end of the pool with no swimming lessons. They had to work it out for themselves. 

Question: How many police officers have been indicted in shooting incidents since Bob McCulloch became prosecutor way back in 1991?

Answer: None

McCulloch is the son of a police officer who was shot in the line of duty. In his 24 years as prosecutor, he has never recommended charges against any police officer.
Question: Had this been a completely different sort of incident, one in which an officer had been killed, would you have instructed the jury in the same way?
Answer: Oh, hell no.

The whole presentation to the grand jury was engineered not only to generate this outcome, but to do so in a way that uses the grand jury process to shield the true nature of what happened. It's a system that McCulloch knows well. 

Another very good question that I forgot until it came up in comments: How is it that what the grand jury was told about Wilson's knowledge of the incident at the store involving cigars is completely at odds with the public testimony of the Ferguson police chief two days after the incident? How is it that Wilson having "made" Brown as a suspect in a robbery, called for backup, but that call is not recorded in any of the released transcripts of police communications? That whole section of McCulloch's statement, covering Wilson's extremely unusual testimony before the grand jury, is completely at odds with everything we were told for the last four months.

Scalia Explains What Was Wrong With The Ferguson Grand Jury

As regular readers know, I almost NEVER agree with anything that Supreme Court Justice Antonin Scalia believes or says.  Indeed, I have argued on this blog as to why the man needs to be removed from the Supreme Court.  Yet, in a 1992 Supreme Court decision Scalia laid out the role of a grand jury and what we witnessed in the Darren Wilson case is a total subversion of that role.  Here are highlights from Think Progress:

On Monday, Prosecutor Bob McCulloch announced that a grand jury had decided not to indict Darren Wilson, the officer who killed Michael Brown. But that decision was the result of a process that turned the purpose of a grand jury on its head. 

Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years.

It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

This passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia.

In contrast, McCulloch allowed Wilson to testify for hours before the grand jury and presented them with every scrap of exculpatory evidence available. In his press conference, McCulloch said that the grand jury did not indict because eyewitness testimony that established Wilson was acting in self-defense was contradicted by other exculpatory evidence. What McCulloch didn’t say is that he was under no obligation to present such evidence to the grand jury. The only reason one would present such evidence is to reduce the chances that the grand jury would indict Darren Wilson. 

The take away?  That McCulloch did all he could to insure that no indictment would be handed down.   Others have come to a similar conclusion as Andrew Sullivan has noted:

Toobin blasts McCulloch for misusing the grand jury:

[T]he goal of criminal law is to be fair—to treat similarly situated people similarly—as well as to reach just results. McCulloch gave Wilson’s case special treatment. He turned it over to the grand jury, a rarity itself, and then used the investigation as a document dump, an approach that is virtually without precedent in the law of Missouri or anywhere else. Buried underneath every scrap of evidence McCulloch could find, the grand jury threw up its hands and said that a crime could not be proved. This is the opposite of the customary ham-sandwich approach, in which the jurors are explicitly steered to the prosecutor’s preferred conclusion. Some might suggest that all cases should be treated the way McCulloch handled Wilson before the grand jury, with a full-fledged mini-trial of all the incriminating and exculpatory evidence presented at this preliminary stage. Of course, the cost of such an approach, in both time and money, would be prohibitive, and there is no guarantee that the ultimate resolutions of most cases would be any more just. In any event, reserving this kind of special treatment for white police officers charged with killing black suspects cannot be an appropriate resolution.

Noam Scheiber is on the same page:

Politically, I understand the advantage of this for McCulloch. He gets to wrap his preference for not indicting Wilson in the legitimacy of a trial-like process, whereas simply declining to indict Wilson without the support of a grand jury would have left him badly exposed. It would have triggered an enormous political backlash, rather than the relatively minor uproar we witnessed Monday night. But as a basic matter of justice, it’s outrageous. As I noted yesterday, the only way to earn the legitimacy of a trial is to actually have a trial, in which both positions are given a fair hearing.

 Justice was not served and while McCulloch may have felt that he was covering his ass, all he did in reality is to cast doubt on the entire criminal justice system and enhance the specter of white privilege.

The Right’s Ferguson Ploy: Why they Want to Focus on “Riots”

In the minds of the members of the far right - especially the Christofascist/Tea Party element - anyone who is not a white, heterosexual, Christian conservative is not really a citizen of the United States or, worse yet, fully human.  In their minds the rest of us, blacks in particular, are not even really fully human.  One might say they view us as some lesser species or, at worse, animals.  Hence the right's desire to focus on the riots and lawlessness that followed the in appropriate grand jury verdict of not returning an indictment against Darren Wilson (see the images above from Fox News) who by his own testimony suggests that he did not see Michael Brown as a fellow human( some of the Norfolk police I encountered in the past - and I would argue perhaps even two Norfolk Circuit Court judges - did not see me as human because I was gay).  They want to use the riots and unrest as justification for police brutality and their own view of minorities as little more than animals.  Sadly, those who engaged in looting and the destruction of private property - who are cretins and betrayers of their own community in my view - played right into the hands of the far right, their mortal enemies.   Some may think me harsh, but sadly I don't think I am misjudging the "godly folks" and their far right allies.  A piece in Salon looks at the far rights desire to change the subject from police misconduct and a law enforcement system biased against blacks in particular.  Here are excerpts:

From the very beginning, before St. Louis County prosecuting attorney Robert McCulloch had uttered the first word of his defensive and dissembling speech, the fix was in. The conspiracy this time was not to protect Officer Darren Wilson from standing trial for the killing of Michael Brown, though that was certainly related. This time, the conspiracy was to organize the announcement of Wilson’s exoneration in as provocative a way as possible. The ultimate goal was to manipulate the public and the press into forgetting the real story of Ferguson — of police brutality and racial injustice — and bickering about the morality of rioting instead.

At the very least, that’s the impression I’ve had throughout the Ferguson controversy, especially as the wait for news from the grand jury dragged on, and as the county’s offices began leaking pro-Wilson factoids like a sieve. And after witnessing last night’s spectacle, which was preceded by multiple delays and conspicuous readying of the state’s police forces, I’m no less convinced that the powers that be in Missouri approached the Wilson verdict with little concern for accountability or justice. All they wanted was to improve the Ferguson power structure’s battered images — not by doing good, but by making the protesters look even worse. It’s a tried and tested strategy; as Rick Perlstein has documented, it helped make Richard Nixon president.

A quick look at the nation’s front pages on Tuesday indicates that the plan worked on some, but fewer perhaps than these would-be Pat Buchanans wanted. By maneuvering to incite disorder and polarize public opinion along race lines, these would-be Nixons probably thought they could “cut the … country in half,” as Buchanan recommended, and walk away with “far the larger half.”

Put simply, we must not allow supporters of the Wilson verdict to distract us by making this a conversation about rioting or poverty or race. That’s not to say we should condone the riots; and it’s certainly not to say we should avoid subjects that involve issues of race and poverty. What it means instead is keeping in mind that riots are nothing new, that the unique struggles of the African-American community can’t be simply attributed to poverty, and that discussions of “race” that aren’t linked with specific policy changes often result in little more than frivolous declarations of privilege.

If we can combat the dual influences of a Ferguson elite that wants national attention to drift elsewhere; and a national media that dislikes policy and favors more watchable, clickable, shareable and fundamentally empty manifestations of the culture war — if we can do that, there’s hope that even though the killing of Michael Brown by Darren Wilson will always be an obscenity, it won’t have been entirely in vain. So let’s ignore those in American society who would rather debate the merits of trashing a bodega than the killing of a child, and let’s not listen to those who would use this opportunity to re-litigate the civil rights movement, the Rodney King riots or the Trayvon Martin case.

I by no means condone looting and violence.  Martin Luther King was onto something when he called for peaceful protests.   That said, gays and all other minority members need to remember that these same elements of the far right hate us too and look for every opportunity to denigrate us and depict us as less than truly human.  We cannot allow ourselves to fall for their propaganda. 

New Lawsuit Against Catholic Church in Philadelphia - Prosecutor Looking At Former Archbishop's Role

The Catholic Church sex abuse scandal in Philadelphia continues to mushroom as a new law suit is about to be filed and the county prosecutor announced that it will undertake a review of all abuse cases reported during former Archbishop, Cardinal Anthony Bevilacqua's tenure. Although it would be wonderful to see Bevilacqua (pictured at left) indicted, sadly due to his age and health issues such is unlikely to happen. Nothing would be more appropriate than to see some members of the high Church hierarchy behind bars for what in any other situation would be easily classified as a criminal conspiracy to obstruct justice. Failing such an indictment, it is important that all the ugly details possible come out so that practicing Catholics are forced to face the fact that they are financially underwriting a criminal enterprise. The Philadelphia Inquirer looks at the prosecutor's announced review plan. Here are some highlights:
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Two grand juries lambasted him and all but branded him a criminal. One said Cardinal Anthony J. Bevilacqua had "excused and enabled" sexual abuse by priests in the Roman Catholic Archdiocese of Philadelphia, then launched a massive cover-up, delaying public revelation of the crimes until it was too late to prosecute.
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The second said sexual abuse was "known, tolerated, and hidden by high church officials, up to and including the cardinal himself." But Bevilacqua will likely answer to none of it. At 87, the cardinal is infirm and suffering from cancer and dementia, his doctors say.
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Allegheny County District Attorney Stephen A. Zappala Jr. said Friday that in response to the Philadelphia grand jury's latest findings, his office had begun a review of all abuse cases reported during Bevilacqua's Pittsburgh tenure. He was head of that diocese from 1983 to 1988.
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Last month, a victims group released documents showing that Bevilacqua, while an auxiliary bishop in Brooklyn in the early 1980s, recommended that a chronically abusive priest be sent to another diocese. There, the priest abused two more children.
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Msgr. William J. Lynn, charged with child endangerment after the recent grand jury concluded that he shielded abusive priests, was simply doing his boss' bidding, the panel said. "Msgr. Lynn was carrying out the cardinal's policies exactly as the cardinal directed," it said.
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Both grand juries said Bevilacqua was obsessed with the church's public image. To avoid scandal, they said, he took pains to ensure that potentially damaging information was kept secret. When one priest was reassigned because of improper behavior with boys, for example, parishioners were told to pray for him because he had Lyme disease.
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The first grand-jury report, which shocked Catholics and others across the region, also found that: When a seminarian told church officials that a Philadelphia priest had abused him as a teen, they worried he might sue. Bevilacqua then ordered an investigation of the seminarian. The priest, later found to have abused "countless" boys, remained in ministry for a decade. Bevilacqua retained and promoted a priest who had molested more than a dozen girls despite complaints against him that included an eyewitness account from another priest.
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I sincerely hope that the prosecutor's office will expose to the bright light of day every foul and morally bankrupt decision of Bevilacqua to sacrifice the lives of children to sexual predators. Meanwhile, CNN has these details on a new lawsuit to be filed against the archdiocese:
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"The Lawsuit will allege that Archdiocese officials conspired to endanger the safety of the Plaintiff when they actively concealed their knowledge of (a) priest's previous offenses, lied to parishioners, and created a sham sexual abuse victim assistance program for the Archdiocese," according to a news release announcing the lawsuit.
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[T]he lawsuit names seven parties in the complaint, including the archdiocese; Cardinal Justin Rigali, the current archbishop; Cardinal Anthony Bevilacqua, a former archbishop; and Monsignor William Lynn, a former top aide to Bevilacqua. The suit accuses the defendants of conspiracy to endanger children, fraudulent concealment and actual fraud.
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The documents obtained by the victims' organization "essentially show that from the earliest days of his career, Bevilacqua has ignored and concealed child sex crimes," said David Clohessy, the group's national director.
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From 1992 until 2004, Lynn was responsible for investigating reports that priests had sexually abused children, the district attorney's office said. The grand jury found that Lynn, 60, endangered children by knowingly allowing dangerous priests to continue in the ministry in roles in which they had access to kids.
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The Church hierarchy is a veritable cesspool, yet practicing Catholic continue to give money to their parishes, a portion of which supports the high clerics who protect and enable child rapists. Rather than worry about same sex marriage, Maggie Gallagher ought to be spending her time demanding a thorough house cleaning in her Church. The fact that she doesn't do so speaks volumes about her own moral bankruptcy.

U.S. Investigates Los Angeles Archdiocese Officials

As the Wall Street Journal is reporting, a federal grand jury has issued subpoenas and begun calling witnesses in a probe of whether top officials of the Catholic Archdiocese of Los Angeles tried to cover up the sexual abuse of minors by priests. Hopefully, the grand jury will ultimately issue indictments against Cardinal Mahoney and others in the Los Angeles Diocese if the findings show a conspiracy to cover up the abuse of minors - which I believe DID occur. But it is important to remember that abuse occurred not only in the Los Angeles Diocese but rather world wide. Having followed the sexual abuse scandal closely for years - I did a guest editorial piece in the Virginian Pilot on the topic back in February, 2002 - the sad reality is that cover up has been the secret official policy of the Church all the way back into the 1960's when John XXIII was Pope. Since the Vatican refuses to do a complete house cleaning of bishops and cardinals who engaged in the cover up of the vile abuse of children and youths, we can only hope that the civil authorities will do what the Church leadership will not do. Here are highlights from the Journal story:

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Federal authorities are investigating the Catholic Archdiocese of Los Angeles to see whether top church officials tried to cover up the sexual abuse of minors by priests, said a person familiar with the matter. A federal grand jury has issued subpoenas and begun calling witnesses in the probe, which began late last year, said this person. The investigation is still in its early, fact-gathering stage, and it isn't known whether any criminal charges will result.

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Cardinal Roger Mahony, who heads the archdiocese, the largest in the U.S., has been criticized by victims' groups for his past handling of sexual-abuse allegations against priests. The Los Angeles County District Attorney's office has been investigating allegations of such abuses for several years. District Attorney Steve Cooley criticized the archdiocese in 2007 for its "institutional moral failure" to "supervise predatory priests." A spokeswoman for the district attorney's office said their investigation is still open.

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The district attorney's investigation began in 2002, around the same time that internal archdiocese emails about priests accused of abuse surfaced in the media. Over the following two years, dozens of alleged victims stepped forward, with many filing lawsuits. They claimed the archdiocese shielded priests accused of molestation by keeping the allegations secret and allowing them to keep working, sometimes moving them from one parish to another.

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No senior Catholic Church officials have been criminally charged in the national scandal. But representatives of abuse victims alleged that senior officials helped perpetuate the crimes by ignoring or covering up evidence of misdeeds. They have argued that prosecuting senior church officials would help stop future abuse. "Everything else has been tried with minimal impact except charging an individual bishop. That would have to an impact," says David Clohessy, national director for the Survivors Network of Those Abused by Priests, a nonprofit victims-advocacy group based in Chicago.

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The federal investigation in Los Angeles is the latest chapter in government's efforts to grapple with the priest-abuse scandals in the Catholic Church that have struck in waves over the past three decades.