Octopus Overlords

This made me laugh.

Kurth wrote: Thu Sep 01, 2022 3:47 amI'm entirely on team stessier/Fireball as far as it goes with this exercise in theoretical masturbation.

You'd probably be surprised how often the question I'm wondering about ends up being somewhat relevant eventually.

But seriously I get why people don't want to exercise it. A lot of people simply don't accept the reality of the situation we are in.

Biden should 100% not be seen as getting involved or putting his thumbs on the scales of justice or even pubic opinion when it comes to criminal investigation/prosecution of Trump and his cronies. The best thing Biden can possibly do in a terrible situation is to remain above the fray for as long as he possibly can. To the extent your thought experiment centers around when - if ever - Biden can no longer keep out of it . . . I'm not sure what the answer is, except that we're definitely not at that point yet (and hopefully, we never will be).

That's the thing you at least thought through to the end of the sentence. A lot of folks are just. "Shouldn't happen. Won't think about it. Won't happen. " Until...it does. Like so many things we've faced.

As an aside, don't take this the wrong way malchior, but every now and then, I read your posts and wonder if you and Drazzil don't share a similar perspective on things. Obviously, not suggesting in any way that you and Drazzil are the same or that your posts have the same merit. But you both do seem to me to insist as a fundamental starting point that the system has failed or is in danger of failing near term and that drastic, out-of-the box action is necessary -- the kind of action the "very serious people" (aka, I think, the institutionalists) will not consider or embrace.

Well I'd agree with him at a very high level. Like from the moon I'd agree that our nation has fundamental governmental components that have failed or are in the process of failing. But as we got closer as he is yammering about Marbury v Madison I'd be focusing on the worsening politicization of a radical court.

In any case, I find it hard to argue against the notion that many of our institutions are not functioning. Some haven't functioned correctly *this century*. I'd characterize the Senate as maybe...20% functional now. We currently have appointees who've been waiting almost a year for up/down Senate votes. We have folks who came out of committee and just somehow were blocked by the byzantine rules of the Senate. There are several experts who argue the Senate and to wit our federal structure hasn't worked well at all but was good enough. Now it is off the rails as we see law making as a rarity, SCOTUS seats stolen, and the such. It's in a failure state.

The Supreme Court is another institutions that has had an inconsistent history, certainly went off the rails in 1857, so we've been patching it ever since. And as an aside that's not a complaint. I think we'd all agree patching was built in and is expected, still we're now at the point where patching has become nearly impossible. The last term is seen by some as one of the most radical we've seen in scope. I heard one expert remark that it seems 2 or 3 sigmas away from mainstream thought. Sounds about right to me. And they have cases on the docket that threaten our democracy. Another failure state.

We just saw the nation damaged greatly by TFG. We saw abuses of power, irritational policy decisions, criming, and then an autocoup attempt. He still is in the middle of a major crisis as we speak. The point is that the federal government is unhealthy. And then you get into the states which are variations of good to very, very, very bad. This is not a nation showing health to us or the world here. Another failure state.

The Brookings institute released a fascinating report here about rising call for "major reform" of the federal government. They have data showing 63% of Americans want "major reform" of the United States government up from 37% in 1997. Of course no one agrees on what the reform looks like so it can't happen. I personally take it as a proxy for the "brokenness" driving polarization. It is a potential key risk indicator about how close we are to a crack up.

Brookings wrote:The demand for reform is broadly linked to the recent increase in government breakdowns, declining confidence in government more generally, and public dissatisfaction with the way the country is headed.

The government breakdowns?

Brookings wrote:Each breakdown had to meet three tests: (1) high visibility in the news, (2) high levels of public interest, and (3) evidence of federal government management or policy failure.

For example, earlier this year the baby formula situation. But most importantly they noted that governmental breakdowns are accelerating.

Brookings wrote:Some of the failures involved what Biden has described as the “irrational downplaying” that led President Trump to minimize the 2020 SolarWinds hack, while others were triggered by legislative hubris, under-funding, and outright sabotage. The question for future action is whether there are patterns across the 123 breakdowns on my list that might lead to fewer failures in the future. Were policy designs at fault? Was political pressure to blame? Were major malfunctions dismissed? Were shortcuts and end-arounds a factor?

The answers can only come from a breakdown-by-breakdown analysis of the facts. The data is easy to assemble—the 123 breakdowns account for dozens of blue-ribbon commissions, congressional investigations, research studies, best-selling histories, and teaching cases. The challenge is to use the findings to develop simple questions that might provoke second thoughts before the policies are enacted, programs implemented, budgets scrubbed, and countdowns begun.

As Chart 4 shows, the number of highly visible government breakdowns has been rising since 1986 when the count began with the Shuttle Challenger accident. Thirty years and 123 breakdowns later, the federal government continues to face significant odds of failure baked into the over-promising, under-staffing, and short-cuts driven by more-with-less directives that stress aging programs to the edge of failure and offer little room for error in new initiatives.

It's really worth a top to bottom read. The point of referencing it is that there are a lot of folks out there building out the case that we have major failures occurring out there. It's not just Brookings. There are books, think tank white papers, etc. out there. The message is on the wind - this nation is falling apart. I believe it to be in major decline. We just keep throwing more and more money at problems with no realistic hope the plans will work because our policy landscape is on ever changing ground.

I don't mean to say this to throw a jab in any way. I just think it's interesting that two forum members who I have diametrically different opinions of end up, not infrequently, espousing views that seem to be at least somewhat on the same page.

Well aside from the calls for blood on the street. I used to talk about it in the sense that I hope we'll wake up and try to re-rail this mess. Now I talk about it because I think people should be preparing for increasingly uncertain and possibly violent times. Believe it or not I got into many arguments here as long as 12 years ago that the Republican party was shifting radically. I saw it. I can remember the discussion that erupted about the alarmism when Ornstein and Mann released, "It's Even Worse Than It Looks" in 2013. And yet here we are in the midst of a crisis that might be existential and we still here the same calls for moderation and avoiding "drastic" action when unfortunately it is what might be needed eventually. I am just challenging people to think about why they hold onto certain values as inviolate when we see new events outside norms regularly and think to themselves but this one is impossible.

And level set a little not everything is doom and gloom. We're failing by the numbers but there is still chance of recovery. The chances of that are much higher if we start to recognize how bad it is and say no. And that might happen.

We might see the Democrats hold the House and Senate this year. I think the former is still wish-casting. The margin to keep the House is extremely tight and 3 out of the 7 seats they need are tied right now to gerrymander politicized judges kicked down the road after the election. The GOP seems to be doing all it can to undermine itself. Let's hope they succeed but we very well may see that spur state level radicalization. And I say that because I'm listening to what they are saying which is often what they eventually do.

Does anybody actually believe that the FBI took that photo to make other people believe the documents were sitting out on the floor? It's got a goddamn evidence tag beside it. It's clearly just a photo of the evidence collected, so of course it's "staged." They put all the evidence in one spot to get a photo. I can't anymore with this level of stupid.

Zaxxon wrote: Thu Sep 01, 2022 7:36 am

Where did Trump find his lawyers?

YellowKing wrote: Thu Sep 01, 2022 8:13 am Does anybody actually believe that the FBI took that photo to make other people believe the documents were sitting out on the floor? It's got a goddamn evidence tag beside it. It's clearly just a photo of the evidence collected, so of course it's "staged." They put all the evidence in one spot to get a photo. I can't anymore with this level of stupid.

Fireball wrote: Wed Aug 31, 2022 5:45 pm

malchior wrote: Wed Aug 31, 2022 2:24 pm

Fireball wrote: Wed Aug 31, 2022 2:13 pm

malchior wrote: Wed Aug 31, 2022 2:08 pm

Fireball wrote: Wed Aug 31, 2022 2:03 pmGarland is handling things correctly, from my perspective. Let's not get in the way.

FWIW though I think Garland hasn't been acting swiftly enough I'm not talking about whether he is handling this correctly or not. Put that aside. Since people seem to be rejecting the thought experiments here is another. Broadly speaking, there is no near-term political event or condition where Garland becomes the inappropriate decision maker here? This is ultimately just a purely cut and dry legal decision?

If we want to be a nation of laws, yes. This is a legal decision. They should indict Trump and try him if they think they have a case that will result in a conviction, and not do so if they do not. That's the only grounded way to make this decision.

I agree it'd be great to have the luxury to hold to these values. Maybe we can make it through. I'm wondering purely theoretically about what happens if that can't happen.

If this entire discussion is just theoretical masturbation, it is a complete waste of time.

Anyone who thinks we should throw out the rule of law to defeat Trump is no better than Trump, and should be treated with the same disdain and judgment that we treat Trump. Such a person hate America just as much as Trump does.

What happens when the rule of law is already thrown out? And when is that point? Theoretical masturbation maybe. But we're closer than most want to admit.

LawBeefaroni wrote: Thu Sep 01, 2022 9:38 am

Fireball wrote: Wed Aug 31, 2022 5:45 pm

malchior wrote: Wed Aug 31, 2022 2:24 pm

Fireball wrote: Wed Aug 31, 2022 2:13 pm

malchior wrote: Wed Aug 31, 2022 2:08 pm

Fireball wrote: Wed Aug 31, 2022 2:03 pmGarland is handling things correctly, from my perspective. Let's not get in the way.

FWIW though I think Garland hasn't been acting swiftly enough I'm not talking about whether he is handling this correctly or not. Put that aside. Since people seem to be rejecting the thought experiments here is another. Broadly speaking, there is no near-term political event or condition where Garland becomes the inappropriate decision maker here? This is ultimately just a purely cut and dry legal decision?

If we want to be a nation of laws, yes. This is a legal decision. They should indict Trump and try him if they think they have a case that will result in a conviction, and not do so if they do not. That's the only grounded way to make this decision.

I agree it'd be great to have the luxury to hold to these values. Maybe we can make it through. I'm wondering purely theoretically about what happens if that can't happen.

If this entire discussion is just theoretical masturbation, it is a complete waste of time.

Anyone who thinks we should throw out the rule of law to defeat Trump is no better than Trump, and should be treated with the same disdain and judgment that we treat Trump. Such a person hate America just as much as Trump does.

What happens when the rule of law is already thrown out? And when is that point? Theoretical masturbation maybe. But we're closer than most want to admit.

FWIW I rolled my eyes at the term theoretical masturbation because it is insulting. I used a technical term for it - threat modeling. It is a vital component to risk management. If you don't understand what your threats are then you don't typically understand your risk and are you can't manage or analyze them. Obviously no one here is going to manage the risk but I was using it in the threat informed risk analysis context. I thought through what looks some plausible threat scenarios and came to conundrums. For example, one possibility is Garland feels he is put in an impossible political situation and refuses like Mueller did to make a charging decision. Maybe that's unlikely but it's a possibility. One amongst many. I thought it might be interesting to work through them here.

People didn't get it. That's fine. This is why I've often said people are bad at risk management. Most people only accept what they've seen in the past. They cling to norms as the only way things are likely to play out. That's a common mistake but I'm not going to spend a ton of effort on it if people aren't interested. This is how I earn a living FWIW. It is mostly because of this behavior. I have cleaned up after other people's lack of curiosity about the possible for years.

Anyway, you are asking the right questions. Where are the limits? Are we there? What happens then? If you don't think about it you're a thought follower...not a thought leader. That's not a judgement at all but just an observation.

My challenge here is that I am not clear what you are suggesting Biden should (or could) do if the top Federal law enforcement official decides charges aren't justified or appropriate for whatever reason?

Biden is going to speak tonight about the threats to our democracy. I doubt that he'll mention trump by name, but MAGA is going to be front and center, as will the rule of law. It will be interesting to watch Biden dance around the root of the problem without naming him.

I don't think he's dancing around it all. He's been mentioning MAGA for a while now. It's very clear to everyone that means Trump AND his supporters. It's a very direct message.

hepcat wrote: Thu Sep 01, 2022 10:48 am I don't think he's dancing around it all. He's been mentioning MAGA for a while now. It's very clear to everyone that means Trump AND his supporters. It's a very direct message.

I meant that he has to avoid sounding like he's encouraging DOJ to prosecute trump in an address to the nation, even though that needs to happen so much that it's kind of central to his argument.

Marketing senses say he'll lean into Dark Brandon a bit. Can he do a press conference wearing sunglasses?

coopasonic wrote: Thu Sep 01, 2022 10:45 am My challenge here is that I am not clear what you are suggesting Biden should (or could) do if the top Federal law enforcement official decides charges aren't justified or appropriate for whatever reason?

I don't know. I expect he'd accept that. That'd however be a trigger for another crisis undoubtedly. A lot of people would throw in the towel on any respect for the government. International partners would undoubtedly recoil. It'd have massive consequences. But that's what I'm getting at. Teasing out some of these threads are informative about getting your hands around the massive risk levels we face. I feel like a lot of people have unjustified confidence in the system that ignores these huge risks.

You just lack faith in the system. I can't imagine why. It'll work itself out.

malchior wrote: Thu Sep 01, 2022 11:34 am

coopasonic wrote: Thu Sep 01, 2022 10:45 am My challenge here is that I am not clear what you are suggesting Biden should (or could) do if the top Federal law enforcement official decides charges aren't justified or appropriate for whatever reason?

I don't know. I expect he'd accept that. That'd be trigger for another crisis undoubtedly. A lot of people would throw in the towel on any respect for the government. International partners would undoubtedly recoil. It'd have massive consequences. But that's what I'm getting at. Teasing out some of these threads are informative about getting your hands around the massive risk levels we face. I feel like a lot of people have unjustified confidence in the system that ignores these huge risks.

Are there alternatives?

I guess the alternatives are to change things to make it much more difficult to get here again, but I highly doubt we would see the congressional cooperation required to get us there. Executive actions seem to be easily undone. What's left?

malchior wrote: Wed Aug 31, 2022 11:59 pm If you go back in the way back machine Harding probably should have been prosecuted.

Warren G. Harding was never an ex-President of the United States.

That didn't help Pope Formosus.

Remember when the people defending Trump's mishandling of classified material were so outraged by Hillary Clinton's email?

Kasey Chang wrote: Thu Sep 01, 2022 4:03 am Frankly, and I'm only going to say this once, IMHO, the ONLY reason that Trump would have that many secret, top secret, Compartmentalized info only, and all that at Mar-A-Largo, was because he had talked to Putin and Putin wanted him to look at secrets.

I don't believe Trump actually takes orders from Putin.

There are plenty of reasons that Trump would have kept the documents: he wanted to sell them, he wanted to have them as leverage against people, he found the contents of them exciting and it made him feel important to have them (like the Macron stuff, for example), he's a petulant child and having the documents helps maintain his fragile ego-driven belief that he is still really the president, he wanted to thumb his nose at the people who had the temerity to tell him he wasn't allowed to take them, etc. Trump's base emotional drive for everything he does always comes down to greed, anger, or a desire to make himself feel important.

Of course, its wasn't enough to have the documents, he also had to tell people that he had them, and tell people what was in them. We know this because the DOJ was told by informants that classified materials remained at Mar-A-Lago, and the stuff about Macron has been spreading amongst Trump-adjacent folks for months. That Trump clearly didn't keep it a secret that he had top secret documents in spaces that weren't secure makes it very possible, perhaps even probable, that foreign intelligence operatives have been able to access the papers over the last 19 months. It's really hard not to draw a line from Trump having documents that detail human intelligence sources in foreign countries and the disappearance of numerous American intelligence sources in the last year. Trump's big fucking mouth probably got people killed.

No former president has ever done anything like this. Based on the public filings in this case so far, it seems to me that DOJ is building a case to indict Trump on this. If they have enough to believe they will likely secure a conviction, they absolutely should do so.

Whoever leaked the photo of all those document cover sheets needs a medal, after all this is done.

No one leaked that. It was an evidence photo produced by the FBI in which they laid out next to the box the documents they found in the box.

Isgrimnur wrote: Thu Sep 01, 2022 1:45 pm That didn't help Pope Formosus.

Fair point. Dark Brandon must insist that Garland hold Harding's rotting corpse accountable for Teapot Dome.

Max Peck wrote: Thu Sep 01, 2022 1:48 pm Remember when the people defending Trump's mishandling of classified material were so outraged by Hillary Clinton's email?

Yes, but Hillary is a Muggle and didn't have the power to automatically declassify those emails with a special declassification wand. Expelliarmus!

malchior wrote: Thu Sep 01, 2022 8:11 am But seriously I get why people don't want to exercise it. A lot of people simply don't accept the reality of the situation we are in.

The notion that you have some unique and clear perspective and the rest of us are just deluded is so fucking absurd.

I am well aware of how stressed our systems and institutions are, I work in one of them every day. But you can't put out a fire with kerosene, which is what a direct intervention by Biden in the DOJ investigation of Trump would be. There'd be no upside to it.

Ultimately, we need to be restrengthening our institutions, not tearing down the guardrails further. A process where DOJ investigates Trump and then makes an independent decision on prosecution is the only way to do that.

In any case, I find it hard to argue against the notion that many of our institutions are not functioning. Some haven't functioned correctly *this century*. I'd characterize the Senate as maybe...20% functional now.

The Senate is deeply and willfully broken, and has been for almost two decades. The abuse of the filibuster has rendered the body, and thus Congress itself, almost completely useless. The rules and customs of the Senate were build for a system without ideologically-aligned parties. Removing the filibuster probably fixes 90% of the Senate's functional problems, but nothing short of a Constitutional amendment can repair its democracy problems. A Senate without a filibuster creates a Congress that can actually pass legislation with some speed and nimbleness, which means less reliance on Executive rule making, and less vulnerability to absurd Court decisions.

malchior wrote: Thu Sep 01, 2022 9:55 am For example, one possibility is Garland feels he is put in an impossible political situation and refuses like Mueller did to make a charging decision.

Mueller was not an ultimate decision-maker. All he could do was recommend actions to actual decision-makers. He chose, wrongly I believe, to not recommend actions that he thought the decision makers would simply disregard.

Garland is the ultimate decision-maker on prosecution. He can't refuse to make a decision. He either has to decide to prosecute Trump based on the case his team can assemble or not to prosecute Trump. And ultimately, he should prosecute if he thinks he can secure a conviction, and not prosecute if he thinks he cannot.

Fireball wrote: Wed Aug 31, 2022 2:13 pm

malchior wrote: Wed Aug 31, 2022 2:08 pm

Fireball wrote: Wed Aug 31, 2022 2:03 pmGarland is handling things correctly, from my perspective. Let's not get in the way.

FWIW though I think Garland hasn't been acting swiftly enough I'm not talking about whether he is handling this correctly or not. Put that aside. Since people seem to be rejecting the thought experiments here is another. Broadly speaking, there is no near-term political event or condition where Garland becomes the inappropriate decision maker here? This is ultimately just a purely cut and dry legal decision?

If we want to be a nation of laws, yes. This is a legal decision. They should indict Trump and try him if they think they have a case that will result in a conviction, and not do so if they do not. That's the only grounded way to make this decision.

You cannot clearly predict the politics of all this. Trying to make a political decision in these matters is much more likely to result in a bad outcome than doing things the right way.

Do I wish Garland were moving faster? Yes, but that's a matter of degrees. I think in terms of securing a conviction on these very serious charges giving Trump and his team a lot of rope to hang himself was useful, even if that means we are indicting in November instead of September -- and I don't necessarily feel that a September indictment would be politically helpful to the Democrats' midterm cause.

Right now, the political winds are blowing in our favor, probably enough to hold the Senate and even grow our majority, and if the present momentum sustains to November it probably makes the House a complete toss-up. From a purely _political_ perspective, I am very disinclined to rock the boat right now.

I could care less about indictments and the midterms and democrats (with regards to these criminal investigations).

I care about there being accountability for ALL of the criminal acts. The *only* way to prevent the next Trump from doing even worse is public accountability for ALL involved.

Moreso for Jan 6th, Ukraine blackmail, Saudi Grift, etc, than these documents. Trump going down for these, while appropriate, does nothing to discourage everything else he did and continues to do.

This isn't about putting Capone away in any way possible, this is about whether a Presidency and the United States of America can be converted to a Kleptocratic Autocracy leading to an eventual Civil War and/or Coup, or if it can stay a relatively free Democratic Republic with a tradition of a peaceful transfer of power.

And if the republicans win the midterms and start obstructing investigations, they need to be held accountable too. In a severe fashion. To that degree, indictments and jail before the midterms (or at least seating of Congress) is important, but not necessary if the GOP doesn't start trying to commit obstruction of justice ASAP...

If.

hepcat wrote: Thu Sep 01, 2022 1:50 pm

Max Peck wrote: Thu Sep 01, 2022 1:48 pm Remember when the people defending Trump's mishandling of classified material were so outraged by Hillary Clinton's email?

Yes, but Hillary is a Muggle and didn't have the power to automatically declassify those emails with a special declassification wand. Expelliarmus!

Fun fact: It doesn't take any special powers to declassify information that was never classified in the first place.

But you're okay with the concept that Trump went to Hogwarts?

hepcat wrote: Thu Sep 01, 2022 2:10 pm But you're okay with the concept that Trump went to Hogwarts?

Americans don't go to Hogwarts. They go to Ilvermorny, which appropriately was co-founded by a descendent of Salazar Slytherin.

Fireball wrote: Thu Sep 01, 2022 2:14 pm

hepcat wrote: Thu Sep 01, 2022 2:10 pm But you're okay with the concept that Trump went to Hogwarts?

Americans don't go to Hogwarts. They go to Ilvermorny, which appropriately was co-founded by a descendent of Salazar Slytherin.

Mitch McConnell?

I can see the argument that the decision to charge a former president is inherently political therefore it is appropriate to have the current president (as a political figure) involved in the decision. BUT I just don't see any practical upside. Biden doesn't have any greater knowledge of the relevant laws (and probably a much worse one). And his involvement would make the already difficult politics worse - among other things lots of low-information Republicans have a sense of "Biden decision = presumably bad" but don't have much of knowledge of or strong feelings about Garland.

AND it would make the case against Trump tougher. Among one of the unavoidable major risks from any case is that you wind up with a Trump-friendly juror who votes to acquit no matter what. Trump's lawyers would inevitably argue that the whole case is just political vengeance by Biden. There's no way to mitigate that risk entirely, but one thing that would likely help is if the DOJ lawyers can say in court that Biden had zero role in the decision.

El Guapo wrote: Thu Sep 01, 2022 2:29 pm I can see the argument that the decision to charge a former president is inherently political therefore it is appropriate to have the current president (as a political figure) involved in the decision. BUT I just don't see any practical upside. Biden doesn't have any greater knowledge of the relevant laws (and probably a much worse one). And his involvement would make the already difficult politics worse - among other things lots of low-information Republicans have a sense of "Biden decision = presumably bad" but don't have much of knowledge of or strong feelings about Garland.

AND it would make the case against Trump tougher. Among one of the unavoidable major risks from any case is that you wind up with a Trump-friendly juror who votes to acquit no matter what. Trump's lawyers would inevitably argue that the whole case is just political vengeance by Biden. There's no way to mitigate that risk entirely, but one thing that would likely help is if the DOJ lawyers can say in court that Biden had zero role in the decision.

To this extent, the Constitution and ALL of our laws are inherently political.

The problem is that the *entire* Republican party thinks that Power shouldn't be subject to either. (see 95% of Republicans in Congress voting against the January 6th Impeachment).

Don't normalize this by calling it "politics". It is foundational to what this Nation alleges to stand for.

Kraken wrote: Thu Sep 01, 2022 10:46 amIt will be interesting to watch Biden dance around the root of the problem without naming him.

I’ll argue that Trump is not even close to the root of the problem that Dark Brandon will supposedly address, but the culmination.

Unless by ‘problem’ you specifically mean ‘Florida Man and the Case of the Missing Super-Classified Docs’.

Fireball wrote: Thu Sep 01, 2022 2:04 pm

malchior wrote: Thu Sep 01, 2022 9:55 am For example, one possibility is Garland feels he is put in an impossible political situation and refuses like Mueller did to make a charging decision.

Mueller was not an ultimate decision-maker. All he could do was recommend actions to actual decision-makers. He chose, wrongly I believe, to not recommend actions that he thought the decision makers would simply disregard.

I've heard this very differently. I saw several experts including this recent Neal Katyal OpEd in the NY Times argue that Mueller actually was the decision maker. As I understand it if Mueller had made a decision Barr could have formally overriden his decision but then he would have had to explain it to Congress. I'd call that a decision maker with a veto attached to it at least. Barr and his cronies seized on Mueller's indecisiveness to create an opportunity that *ignored the rules* and white washed the whole affair.

Mr. Mueller demurred in making that determination because of a longstanding policy against indicting sitting presidents, reasoning that if he could not formally indict, he then could not say whether Mr. Trump committed crimes. Reasonable minds can disagree with Mr. Mueller’s determination, but the key here is that Mr. Barr thought such a determination could be made.

But instead of doing what the regulations contemplated — namely, tell Mr. Mueller he disagreed and ask him to make that bottom-line determination — Mr. Barr left that intricate determination to two political appointees. He did this in the teeth of a set of regulations that required him to report to Congress if he disagreed with the counsel. Mr. Barr never made such a report and instead, until last week, the memo remained unavailable to the public; a Federal District Court judge recently called the Justice Department’s explanations to keep it secret “disingenuous,” as well as “misleading and incomplete.”

Garland is the ultimate decision-maker on prosecution. He can't refuse to make a decision.

Why not? Is there a law or policy that says they absolutely have to make a charging decision? He can't drag the investigation timeline out? There are many ways he can at least for some extended period of time not move on it. We're somewhere in year four(?) of the Hunter Biden investigation right now as an example.

He either has to decide to prosecute Trump based on the case his team can assemble or not to prosecute Trump. And ultimately, he should prosecute if he thinks he can secure a conviction, and not prosecute if he thinks he cannot.

In a vacuum that's the way it should work. In current circumstance I still find it hard to be definitive in outcomes.

El Guapo wrote: Thu Sep 01, 2022 2:29 pm I can see the argument that the decision to charge a former president is inherently political therefore it is appropriate to have the current president (as a political figure) involved in the decision. BUT I just don't see any practical upside.

I think the proper frame though is if it is happening then circumstances are quite dire. Which doesn't seem implausible considering how things are trending right now.

Biden doesn't have any greater knowledge of the relevant laws (and probably a much worse one). And his involvement would make the already difficult politics worse - among other things lots of low-information Republicans have a sense of "Biden decision = presumably bad" but don't have much of knowledge of or strong feelings about Garland.

When I was thinking it through I kept coming to a crossroads where he might have to be the adjudicator amongst many concerns. We want it to be solely a legal determination for sure BUT realpolitik concerns may supercede. There is no playbook that covers when a former President who scared the bejesus out of all our allies also might have spilled/sold/faxed/owled critical secrets to god knows who. I can't imagine what the intelligence agencies and FBI are dealing with right now but it can't be good.

AND it would make the case against Trump tougher. Among one of the unavoidable major risks from any case is that you wind up with a Trump-friendly juror who votes to acquit no matter what. Trump's lawyers would inevitably argue that the whole case is just political vengeance by Biden. There's no way to mitigate that risk entirely, but one thing that would likely help is if the DOJ lawyers can say in court that Biden had zero role in the decision.

This is a real concern that they have to weigh no matter what. I think we need to indict Trump but realize that it might invite further crisis. But that's what we face - a cluster of crises that you have to try to pick the best path through. We elected Biden for that. I have little faith in his judgement personally but he is the guy we have. It seems crazy that should things get bad enough that we'd go hard inflexible and exclude the person with the most authority in the land . Again I'm assuming it'd be a dire situation.

Carpet_pissr wrote: Thu Sep 01, 2022 3:46 pm

Kraken wrote: Thu Sep 01, 2022 10:46 amIt will be interesting to watch Biden dance around the root of the problem without naming him.

I’ll argue that Trump is not even close to the root of the problem that Dark Brandon will supposedly address, but the culmination.

Unless by ‘problem’ you specifically mean ‘Florida Man and the Case of the Missing Super-Classified Docs’.

That is the immediate problem. Prosecuting trump sets a dangerous precedent if it normalizes a current administration taking revenge on its predecessor, especially if Biden is seen as pressuring the DOJ to do it. Not prosecuting trump sets a dangerous precedent of setting ex-presidents above the law regardless of how drastic their crimes are. Either decision is perilous. Yet I expect Biden to talk about the forces undermining our democracy without addressing that central question.

It's going to be an interesting and important address, anyway. I'll be watching.

malchior wrote: Thu Sep 01, 2022 3:59 pm

AND it would make the case against Trump tougher. Among one of the unavoidable major risks from any case is that you wind up with a Trump-friendly juror who votes to acquit no matter what. Trump's lawyers would inevitably argue that the whole case is just political vengeance by Biden. There's no way to mitigate that risk entirely, but one thing that would likely help is if the DOJ lawyers can say in court that Biden had zero role in the decision.

This is a real concern that they have to weigh no matter what. I think we need to indict Trump but realize that it might invite further crisis. But that's what we face - a cluster of crises that you have to try to pick the best path through. We elected Biden for that. I have little faith in his judgement personally but he is the guy we have. It seems crazy that should things get bad enough that we'd go hard inflexible and exclude the person with the most authority in the land . Again I'm assuming it'd be a dire situation.

This is where I get a little confused. The situation is not that we would exclude Biden from the decision because things are bad. The point is that Biden / the President is *normally* excluded from this type of decision, and for very good reason given the abuses that can come from presidents directing criminal prosecutions. It's more that I don't see any reason for making an exception to the normal rule by including him in a decision that he normally wouldn't be a part of.

And like I said, indicting Trump would be an exceptional decision by nature, so there is *some* appeal to involving him in something like this. But not enough. And yeah, Biden is the elected one here, but...we elected him, and he used his elected authority to appoint Garland (who was then confirmed by the Senate). And ultimately lots of presidential decisions are delegated to cabinet level people.

El Guapo wrote: Thu Sep 01, 2022 5:02 pm

malchior wrote: Thu Sep 01, 2022 3:59 pm

AND it would make the case against Trump tougher. Among one of the unavoidable major risks from any case is that you wind up with a Trump-friendly juror who votes to acquit no matter what. Trump's lawyers would inevitably argue that the whole case is just political vengeance by Biden. There's no way to mitigate that risk entirely, but one thing that would likely help is if the DOJ lawyers can say in court that Biden had zero role in the decision.

This is a real concern that they have to weigh no matter what. I think we need to indict Trump but realize that it might invite further crisis. But that's what we face - a cluster of crises that you have to try to pick the best path through. We elected Biden for that. I have little faith in his judgement personally but he is the guy we have. It seems crazy that should things get bad enough that we'd go hard inflexible and exclude the person with the most authority in the land . Again I'm assuming it'd be a dire situation.

This is where I get a little confused. The situation is not that we would exclude Biden from the decision because things are bad. The point is that Biden / the President is *normally* excluded from this type of decision, and for very good reason given the abuses that can come from presidents directing criminal prosecutions. It's more that I don't see any reason for making an exception to the normal rule by including him in a decision that he normally wouldn't be a part of.

And like I said, indicting Trump would be an exceptional decision by nature, so there is *some* appeal to involving him in something like this. But not enough. And yeah, Biden is the elected one here, but...we elected him, and he used his elected authority to appoint Garland (who was then confirmed by the Senate). And ultimately lots of presidential decisions are delegated to cabinet level people.

The last sentence is highly important. I'll say it again I am wondering about circumstances that may require NOT NORMAL response. Unless I'm misreading it you (and others have said as much) are saying you can't think of any exception. That seems just too dogmatic when you are dealing with potentially fluid asymmetrical situations. I'll also point out the normal process hasn't been working. We keep trying it and it keeps not containing the threat. On top we have actors aiding and abetting him. Barr bent over backwards to protect him. His party in the Senate did the same, etc. Edit: He may continue to get top cover from an increasingly politicized judicial branch (see next post!). And here we are staring down yet another major crisis. It just seems like insanity to say the normal process is the *only* process. Again I'd love for norms to hold and restore confidence in the system...but I really feel like folks have to honestly admit that feels fairly low percentage now.

In other relevant news, it sounds like the Trump judge withheld ruling orally but indicated she is going to rule favorably for Trump. She curiously blocked all live coverage of the hearing. Reporters who attended are releasing accounts about what they heard discussed. Very few lawsplainers have weighed in because this is all sort of coming out in dribs and drags. (No thanks to the courts unacceptable opaqueness).

The quick takes are that she'll probably allow the Intelligence Community damage assessment to continue but bar DOJ criminal investigators from continuing to review documents until the can get an appropriate Special Master in place. Which frankly a lot of legal minds said made no sense. We were assured by many that she is just cutting through the bullshit. That determination looks to be in doubt. Instead we might come to see she acted quickly because the filing was so dilatory. We'll see but we'll know sometime soon I assume whether some Trump appointed judge deploy yet another dubious shield for him.



Politico

A federal judge indicated Thursday that she’s giving serious consideration to temporarily barring Justice Department investigators from reviewing material seized from Donald Trump’s Mar-a-Lago estate.

U.S. District Court Judge Aileen Cannon suggested that she’s mulling imposing that restriction, while potentially allowing an exception for the intelligence community to continue reviewing national security risks from the potential exposure of the slew of sensitive documents the FBI found at Trump’s compound earlier this month.

Cannon’s willingness to consider restraints — even for a period of time — on prosecutors and investigators in the politically explosive inquiry is some of the first positive news for Trump and his attorneys in a saga that presents an acute legal threat and has caused new strains with Republican elected officials.


Justice Department attorneys pushed back sharply against any such limits, warning against disruption of their ongoing criminal investigation of Trump’s handling of classified documents. Cannon, who previously said she was inclined to order an outside review of the materials seized from Trump’s estate, appeared undeterred during a 90-minute hearing that featured arguments from DOJ counterintelligence officials and Trump’s legal team.

Senior Justice Department attorney Jay Bratt repeatedly pleaded with Cannon, a Trump appointee, not to interrupt their ongoing criminal probe, emphasizing that the search warrant executed Aug. 8 was clearly valid and lawfully authorized to obtain “evidence of three significant federal crimes.”

“He is no longer the president and because he is no longer the president he did not have the right to take those documents,” said Bratt, the chief of the counterintelligence section in the Justice Department’s National Security Division. “He was unlawfully in possession of them…This plaintiff does not have an interest in the classified and other presidential records.”

Cannon signaled concern about a couple of instances in which the investigative team had flagged potentially privileged material that was not screened out during the initial review of records by the DOJ “filter team” assigned to prevent such occurrences.

malchior wrote: Thu Sep 01, 2022 5:22 pm The last sentence is highly important. I'll say it again I am wondering about circumstances that may require NOT NORMAL response. Unless I'm misreading it you (and others have said as much) are saying you can't think of any exception. That seems just too dogmatic when you are dealing with potentially fluid asymmetrical situations.

I disagree that it's too dogmatic. The very definition of what we are fighting for requires that there be no exception. Any other way means all is lost. There is no "right answer for the wrong reasons" outcome here.

stessier wrote: Thu Sep 01, 2022 6:33 pm

malchior wrote: Thu Sep 01, 2022 5:22 pm The last sentence is highly important. I'll say it again I am wondering about circumstances that may require NOT NORMAL response. Unless I'm misreading it you (and others have said as much) are saying you can't think of any exception. That seems just too dogmatic when you are dealing with potentially fluid asymmetrical situations.

I disagree that it's too dogmatic. The very definition of what we are fighting for requires that there be no exception.

History would suggest there have been plenty of exceptions yet we're still here.

Any other way means all is lost. There is no "right answer for the wrong reasons" outcome here.

I disagree strongly. I think this is highly unrealistic and further it has never been this way. This is a unique situation. Everything about it is custom. Thinking that there is only one proper path just doesn't make much sense to me. I expect whatever happens it'll just feed into another cycle of crises though. There is no easy way out now.