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Tag: Law & Government

  • Kash Patel tellingly ties James Comey’s indictment to the legally unrelated ‘Russiagate hoax’

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    In his 2023 book Government Gangsters, Kash Patel, now the director of the FBI, described a “deep state” conspiracy against Donald Trump that he equated with a conspiracy to subvert democracy and the Constitution. An appendix to the book listed 60 “Members of the Executive Branch Deep State,” whom Patel described as “corrupt actors of the first order.” The list included former FBI Director James Comey, whom Trump fired in 2017 out of anger over the FBI’s investigation of alleged ties between his presidential campaign and the Russian government.

    After Trump picked Patel to run the FBI, the nominee assured the Senate Judiciary Committee that, despite his vow to “come after” the “conspirators,” there would be “no politicization at the FBI” and “no retributive actions” against the president’s enemies. Thursday’s indictment of Comey, which charges him with two felonies based on allegedly false congressional testimony in September 2020, epitomizes the emptiness of that promise.

    As Patel tells it, the indictment, which was filed just a few days before the charges would have been barred by the five-year statute of limitations, is not a “retributive action.” Rather, it is “another step” in keeping the FBI’s “promise of full accountability.” It just so happens that accountability in this case coincides with pursuing one of the president’s many personal vendettas.

    “For far too long, previous corrupt leadership and their enablers weaponized federal law enforcement, damaging once proud institutions and severely eroding public trust,” Patel said in a press release. “Every day, we continue the fight to earn that trust back, and under my leadership, this FBI will confront the problem head-on. Nowhere was this politicization of law enforcement more blatant than during the Russiagate hoax, a disgraceful chapter in history we continue to investigate and expose. Everyone, especially those in positions of power, will be held to account—no matter their perch. No one is above the law.”

    Despite that framing, the Comey indictment, on its face, has nothing to do with “the Russiagate hoax.” It alleges that Comey lied during a Senate Judiciary Committee hearing on September 30, 2020, when he reaffirmed his earlier testimony that he had not authorized anyone at the FBI to “be an anonymous source in news stories about matters relating to the Trump investigation or the Clinton investigation”—i.e., the FBI probe that examined Hillary Clinton’s handling of classified material as secretary of state, including her use of a private email server.

    As Sen. Ted Cruz (R–Texas) noted at the 2020 hearing, Comey’s testimony contradicted what Andrew McCabe, Comey’s former deputy, had told the Justice Department’s Office of the Inspector General (OIG). McCabe claimed Comey had approved the disclosure of information about an FBI probe of the Clinton Foundation to The Wall Street Journal, which mentioned that new wrinkle in a story about the email investigation published on October 30, 2016. But the OIG report on the leak credited Comey’s version of events and portrayed McCabe as persistently dishonest.

    “McCabe lacked candor when he told Comey, or made statements that led Comey to believe, that McCabe had not authorized the disclosure and did not know who did,” the report said. “McCabe lacked candor when he told [FBI] agents that he had not authorized the disclosure to the WSJ and did not know who did….McCabe lacked candor when he stated that he told Comey on October 31, 2016, that he [McCabe] had authorized the disclosure to the WSJ” and that “Comey agreed it was a ‘good’ idea.”

    The OIG report concluded that “McCabe did not tell Comey on or around October 31 (or at any other time) that he (McCabe) had authorized the disclosure of information about the [Clinton Foundation] Investigation to the WSJ.” It added that “had McCabe done so, we believe that Comey would have objected to the disclosure.”

    Based on the contrary assumption that McCabe was telling the truth, the indictment charges Comey with “willfully and knowingly” making “a materially false, fictitious, and fraudulent statement” to the Senate Judiciary Committee. Under 18 USC 1001(a)(2), that’s a felony punishable by up to five years in prison. The indictment also alleges a related felony, subject to the same maximum penalty, under 18 USC 1505, which applies to someone who “corruptly” attempts to “influence, obstruct, or impede” a congressional proceeding.

    To successfully defend Comey against those charges, National Review‘s Jim Geraghty notes, his lawyers “will have to convince at least one juror that former FBI Deputy Director Andrew McCabe is a duplicitous SOB who lied when he claimed Comey had given permission to leak the information when Comey did not. That does not exactly sound like Mission: Impossible.”

    Given the weakness of the case against Comey, it is not surprising that career prosecutors did not think it was worth pursuing. That resistance explains why the indictment is signed only by Lindsey Halligan, a former Trump lawyer with no prosecutorial experience whom the president appointed as interim U.S. attorney for the Eastern District of Virginia this month after her predecessor, Erik Seibert, proved insufficiently receptive to pursuing charges against Comey and New York Attorney General Letitia James, another Trump nemesis. Even Attorney General Pam Bondi, who on Thursday claimed Comey’s indictment reflected the Justice Department’s “commitment to holding those who abuse positions of power accountable for misleading the American people,” reportedly was skeptical of the case in private.

    It is telling that Patel explicitly tied Comey’s indictment to “the Russiagate hoax” even though the charges are legally unrelated to that investigation. In a December 2023 podcast interview, Patel made it clear that he was determined to punish the “corrupt actors” who had wronged Trump even if it required some legal creativity. “Whether it’s criminally or civilly, we’ll figure that out,” he said. “But yeah, we’re putting all of you on notice.”

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    Jacob Sullum

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  • Walz’s gun plan wouldn’t stop shootings, but it might shred civil liberties

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    Minnesota Democratic Gov. Tim Walz announced on Tuesday plans to hold a special legislative session to introduce new statewide gun control measures, including a ban on “assault weapons.” This comes in the wake of last week’s tragic mass shooting at Annunciation Catholic School in Minneapolis, which left 21 injured and 2 dead.

    Despite assurances that the proposals would not infringe upon Second Amendment rights, Walz’s proposed measures raise significant constitutional concerns. In addition to a ban, Walz proposed a law that would mandate stricter standards for safe storage, increased funding for mental health treatment, and further expansion of Minnesota’s 2023 red flag laws.

    The governor’s statements drew mixed reactions, mostly along partisan lines, with state Democrats largely supportive. Echoing Walz’s call, Minneapolis Mayor Jacob Frey, St. Paul Mayor Melvin Carter, and eight other city leaders urged repeal of Minnesota’s 1985 preemption statute, which bars local governments from enacting stricter gun laws than the state. Even if broader legislation fails, they insist cities must be able to act.

    State Republicans, despite expressing their willingness to work with Democrats to address gun violence, have predictably voiced skepticism toward the proposed measures, citing concerns about potential civil liberties violations, questioning the governor’s intentions, and ultimately doubting that a bipartisan resolution could be reached.

    Walz still seems willing to work with Republicans. But whatever kind of legislation the special session produces—particularly restrictions and/or local bans on common firearms—will likely face constitutional challenges if ratified. 

    The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen established that all state and local-level gun regulations must align with firearm laws that were in place at the time of the Constitution’s framing. Since then, courts have overturned various state-level gun control laws, including bans on so-called “assault weapons,” for not reflecting that standard—among them, Illinois’ attempted prohibition of semiautomatic rifles and Tennessee’s ban on concealed carry in public parks.

    In Minnesota, these complexities extend further. The push to repeal the state’s preemption law—designed to prevent municipalities from passing stricter firearm ordinances than the state—would unravel decades of legal consistency, exposing residents to a fragmented landscape of local regulations and expanding the potential for municipal overreach. However, concerns over state overreach are not merely theoretical.

    Since red flag laws first emerged in 1999, civil liberties advocates have warned of due process erosion, as courts have authorized firearm seizures through ex parte orders with minimal evidentiary standards. In many cases, individuals lose their constitutional rights without being criminally charged or having a chance to dispute allegations. This lack of clarity can lead to deadly misunderstandings, as in 2018, when Maryland resident Gary Willis was killed by police while being served a red flag order issued without his knowledge. Extreme though it was, the case underscores how such laws can escalate risk and undermine core constitutional protections.

    Rather than address these deficiencies, Walz appears ready to double down, suggesting not only an expansion to his earlier red flag laws, but also broader state authority to disarm citizens based on subjective assessments of future risk. If the current trajectory continues, Minnesota may soon serve as a national test case for how far civil liberties can be curtailed in the name of safety.

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    Jacob Swartz

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  • As an author of one of these briefs, I am free to admit the lie.

    As an author of one of these briefs, I am free to admit the lie.

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    Last week the Harvard Law Review published its annual Supreme Court issue, which contains a Foreword by a leading constitutional law scholar on some of the major themes of the term, or the era generally. This year the Foreword was The Constitution of Anti-Colonialism, by Maggie Blackhawk, one of the most prominent scholars of Federal Indian Law in the academy. The piece contains a lot of important themes and interesting discussions, including the Supreme Court’s decision last term in Brackeen v. Haaland, which concerned the constitutionality of the Indian Child Welfare Act.

    While this is far from the most important thing in the Foreword, I was particularly struck by a passage Professor Blackhawk wrote about the briefing in Brackeen:

    Rather than identifying the preservation of colonized communities as a constitutional value, the well-established constitutional discourse around “equal justice,” crafted in the aftermath of human enslavement and Jim Crow segregation,67 drove the legal arguments of advocates and, in turn, framed the issues before the Court.68 Advocates defending the constitutional status of ICWA assumed a defensive crouch, arguing against constitutional relevance.69 They argued instead that Native children were uniquely not part of racialized communities,70 that removal was not rooted in racism,71 and that federal “plenary” power was, on average, beneficial to Native nations.72 As an author of one of these briefs,73 I am free to admit the lie. As I have written elsewhere, “racial hierarchies formed whatever heart imperialism has”74 and “national power was no panacea for the subordination of Native peoples.”75 But, again, what other option are we left with when the United States does not seem able to even admit its status as empire,76 much less reckon with it as a problem of constitutional order?

    67: Transcript of Oral Argument, supra note 47, at 95 (discussing the principle of “equal justice” in Palmore v. Sidoti).

    68: For example, Matthew D. McGill, counsel for Chad Everet Brackeen and others, argued that ICWA “flouts the promise of equal justice under the law.” Id. at 5.

    69: See, e.g., Brief of Amici Curiae American Historical Association and Organization of American Historians in Support of Federal and Tribal Parties at 7-11, Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (Nos. 21-376, 21-377, 21-378 & 21-380) [hereinafter Brief of Amici Curiae AHA and Organization of American Historians] (arguing that the federal government has long regulated Native families and children without constitutional issue).

    70: Federal Appellants’ En Banc Brief at 1, Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019) (No. 18-11479) (“ICWA’s protections are triggered not by any individual’s race but rather by the political fact of membership in a federally recognized tribe.”); see also id. at 27-32 (arguing that the challenged provisions of ICWA draw upon political, not racial, classifications); Petition for a Writ of Certiorari at 12, 26, Brackeen, 143 S. Ct. 1609 (No. 21-376) (urging the Supreme Court to hold that “ICWA’s Indian-based classifications are political, not racial, classifications”).

    71: See Brief of Amici Curiae AHA and Organization of American Historians, supra note 69, at 23-25 (describing the “fiscal concerns” underlying Native child removal in the mid-twentieth century, as opposed to the influence of “a long-standing federal policy of assimilation and racism,” id. at 23).

    72: See Transcript of Oral Argument, supra note 47, at 167 (“From the beginning, the … plenary power doctrine was used to protect Indians from non-Indians.”).

    73: See Brief of Amici Curiae AHA and Organization of American Historians, supra note 69, at 1-2.

    74: Blackhawk, supra note 27, at 1861.

    75: Id. at 1797-98.Id. at 1794 n.14 (citing Lisa Kahaleole Hall, Strategies of Erasure: U.S. Colonialism and Native Hawaiian Feminism, 60 AM. Q. 273, 275 (2008) (“The myth of a (mostly) empty North American continent waiting for (European) settlement and ‘development’ is foundational to the origin story of the United States as a ‘nation of immigrants’ developing an untamed wilderness. This continental origin story requires the denial of more than five hundred years of contrary facts beginning with the existence of millions of indigenous people inhabiting North America at the time of European contact and continuing through to the present with the struggles of more than 562 currently federally recognized tribal entities fighting to maintain their limited sovereignty and promised treaty rights in the context of complete public ignorance and complaints about their ‘special rights.”‘); Patrick Wolfe, Settler Colonialism and the Elimination of the Native, 8 J. GENOCIDE RSCH. 387, 388 (2006) (“The logic of elimination … is an organizing principle of settler-colonial society rather than a one-off (and superseded) occurrence. The positive outcomes of the logic of elimination can include officially encouraged miscegenation, the breaking-down of native title into alienable individual freeholds, native citizenship, child abduction, religious conversion, resocialization in total institutions such as missions or boarding schools, and a whole range of cognate bicultural assimilations …. Settler colonialism destroys to replace.” (footnotes omitted))) (surveying the literature on the erasure of colonialism).

    What I find especially thought-provoking about the bolded passage above (“As an author of one of these briefs, I am free to admit the lie“) is the tension it appears to raise between a law professor’s role in authoring scholarship and his or her role in authoring amicus briefs. It appears to suggest that as amicus, a professor might make arguments that are likely to appeal to the court even if they are arguments that one would not make—and indeed would disavow—in one’s scholarship. By contrast, others (most famously Professor Richard Fallon) have argued that scholarly amicus briefs should comply with the norms of scholarly integrity that apply to scholarship.

    I would be curious to know what reactions others have to this tension.

    [I would add that Professor Blackhawk’s name does not actually appear on the scholarly amicus brief she references (except as a cited source), which was filed on behalf of the American Historical Association and the Organization of American Historians. But Professor Blackhawk describes herself as “[a]n author” of the brief in this passage, and has taken credit for it on her CV and elsewhere, so I take it that this incident does still raise the general question about the roles of scholarship and amicus brief.]

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    Will Baude

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