A couple of other former federal prosecutors see things differently in this story.
Thanks. One of the people quoted in your source says it varies by office. So it’s possible that McCarthy may be right about his own experiences, but that those don’t necessarily apply to Mueller.
McCarthy says, “Justice Department policy calls for prosecutors to indict a defendant on the most serious readily provable charge, not to plead out a case on minor charges to obtain cooperation.” Is the Mueller investigation bound by that DOJ policy? I mean that as an honest question. Mueller is under the DOJ but also independent. Does he have leeway to make the kind of deals that might otherwise be against DOJ policy?
ETA: Nevermind. I should read the links before I post. The TPM article says:
I’m no expert but I’ve followed quite a few federal cases and this wasn’t true in really any of them. They say prosecutors charge defendants with the most serious offense. That is true for people who are going to trial, but I haven’t found it true for people who take a plea.
It flies in the face of logic to say that people who take pleas are charged just as seriously and are relying on the whim of the judge to give them a lesser sentence. It would be pretty dangerous to take a deal like that. No, people plead to lesser charges all the time.
I have someone close to me who just took a plea deal in a federal case that had about 20 defendants and, of the dozen or more who took pleas, it wasn’t true for a single one of them. They all pled to lesser charges.
In short, looks like partisan tripe.
I have been doing this for some time on the theory that most of the time when we see his name all five letters are capitalized. We’re just restoring balance to the universe.
Yeah, my informed opinion is that you’re correct and that Assistant US Attorney McCarthey is carrying water for the Trumpists. Which is particularly amusing, since the article makes a clear argument that Trump is in peril of impeachment for merely the obstruction issues.
My informed experience in the field of law – not as a lawyer, but as someone who worked with lawyers and judges sitting in a courtroom for 20 years and also as a certified paralegal – is that I don’t find Mueller’s choice of charges to be in conflict with any Justice Department policy that calls for prosecutors to indict a defendant on the most serious readily provable charge. Lying to the FBI is a serious charge, a felony that carries a term of punishment of up to 5 years in prison. Flynn is now a convicted felon. As to which charge Mueller has at his disposal that can be “readily provable,” since the FBI recorded Flynn’s conversations with Kislyak, my guess is that the lying charge is pretty easy to prove.
In other news and in a more general statement to the thread, I did finally hear a cogent discussion on why the Logan Act is unlikely to be invoked in this case. According to the expert lawyers discussing it, the reasoning was basically, why break ground for new case law when existing law will serve so well? And that makes sense. I’ve said at different points in this thread that I believe charges of conspiracy between the Trump campaign and Russia were going to be a likely result with respect to the “collusion” aspect of this case and I still think that’s true. Sounds like Flynn is going to tie it all up with a big red bow.
I reckon.
Crotalus, I’d be very interested in a summary of what Preet Bharara has to say about all this, if you were kind enough to offer one after you’ve heard the podcast. I’d listen to it myself, but metered bandwidth is a concern in my very rural living situation. If it’s too big an ask, I certainly understand.
I’ll be happy to post a summary as soon as I get a chance to listen.
I know it wasn’t Dowd simply because it’s DONALD TRUMP’S TWITTER ACCOUNT. It’s all Donald all day.
Most kind of you. Thank you.
LOL, I half thought for a moment that Dowd agreed to fall on his sword just so he could declare a conflict and get out of the case. Unfortunately, that would potentially expose him to a charge of obstruction, so probably not.
OTOH, if Trump of his own accord made the assertion that it was Dowd without first having obtained Dowd’s permission to do it (and I wouldn’t put such an act past him at all), then what a fine Christmas present for Dowd! Can’t be a defending lawyer and a witness at the same time… oh, darn. 
Andrew McCarthy sez:
- … If the FBI had a collusion case of some kind, after well over a year of intensive investigation, Flynn and Papadopoulos would have been pressured to plead guilty to very serious charges*
Again, I don’t think McCarthy is justified in saying that there has been a collusion investigation that has gone on (intensively!) for over a year, certainly not into Flynn & Papadopoulos, or that Mueller is strictly obligated to only charge them with his most serious charge.
<shrug>
Like any other assertion, the onus is on McCarthy to support his argument. At least in the bits you quoted, he doesn’t do that.
Having said that, I would certainly encourage the Donald and whichever John alter is in charge today to go on believing that the worst is over and Mueller will certainly not be filing any more charges. In fact, he’s probably just wrapping things up! He’s probably just planning a huge, “Trump is Totally Beautiful and Innocent” party even as we speak!
So, trump cannot obstruct justice because he said he cannot. Constitutional law doesn’t exempt him from this charge. He wants it to, and so in the perverted construct of his life-view, all he has to do is say it does. If that doesn’t seem to be going well, he’ll issue an Executive Order making it so.
We’re not a Dictatorship how?
I think what he meant to say is that he can’t be prosecuted for obstruction of justice while he’s actually president – and he’s 100% right, fortunately or unfortunately, depending on how one views it.
He can be impeached for obstruction of justice, but my take is that this is Trump’s lawyer (and Trump’s) way of saying, "Try ‘n impeach me.’ It’s a middle finger to the investigation. It’s probably not long before he tries to shut it down once and for all, is my guess.
Of course that will kick off a new round of anguish and political chaos but Trump is used to it - he loves living in a garbage can. This is the Oscar the Grouch presidency.
ISTM that this misstates the argument being made, which is a serious argument though not all agree with it.
The argument is that anything Trump does which by law or constitution is the role of the Executive branch is by definition not obstruction of justice. That doesn’t mean that he can’t obstruct justice if he does something outside those parameters. For example, suppose there’s a law against destroying evidence without any exemption for law enforcement sources (e.g. pending full investigation) and Trump destroys such evidence or directs other people to do so, then I believe everyone agrees that he’s guilty of obstruction. The issue here is that there’s no law against the DOJ deciding to not prosecute anyone, or against the president firing the head of the FBI, so that’s not obstruction.
The counterargument is that engaging in these actions for the purpose of covering up a crime is obstruction even if the president does it.
But at any rate, it’s not as if anyone is arguing that nothing a president does can possibly be obstruction, to my knowledge anyway.
I think he’s saying it’s not obstruction, as he has every right to step into any investigation since he’s in charge of the executive branch.
I wish you would not insult Oscar the Grouch.
As to my bolding of your post… why do you think he hasn’t shut down the investigation already? I mean, every single day it goes on things get worse and worse for him. He’s twisting himself into a pretzel trying to “explain” what happened. His poll numbers are slow to tank, but they’re tanking. If he could shut it down, for the life of me I can’t think why he already hasn’t. What’s your take on that?
He should be careful what he wishes. According to some opinion, he could not only be off Trump’s case, but possibly off ALL his cases!
Bush ethics lawyer: Trump lawyer should be disbarred if he wrote Flynn firing tweet
Is it really so bad if you’re never going to get paid anyway?
I’m impressed by the combination of words in “The top ethics lawyer in former President George W. Bush’s administration”. I’m just going to let that sit there and admire it for a little while.
True. I give him till Friday to terminate Muller.
And then charge him with Treason for going after the President.
Cause, you know, he can.
In the article linked above, you will see that Sessions argued in the Clinton Impeachment that Presidents can indeed obstruct justice. So did a few other notable people.