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How Bill Barr Could Force Democrats To Begin Impeachment Hearings

How Bill Barr Could Force Democrats To Begin Impeachment Hearings

Attorney General Bill Barr has not hesitated to assume full control of the Justice Department, and he appears unafraid of the brewing fight with Democrats in Congress over the release and redactions of Special Counsel Robert Mueller’s report on the Russia investigation.

Testifying before the House Appropriations Subcommittee, ostensibly to discuss other matters, Barr told representatives that he is preparing to release the report within a week. However, it will be redacted, with some — possibly much — information concealed from public view. The four main categories of redactions include:

  • Classified material
  • Grand jury testimony
  • Derogatory information about uncharged people
  • Sensitive information about ongoing cases and investigations

Another potential category that doesn’t apply, Barr has said, is information covered by executive privilege; the president has in effect waived privilege. That classified material should be kept secret is uncontroversial, though Congress has means to obtain that information confidentially. It also should be able to, either confidentially or not, obtain information about uncharged people. And information related to ongoing information will presumably eventually be revealed in some form or another, and most people would agree it’s best for law enforcement to maintain its ability to do its job in those case.

But grand jury information is the trickiest category. By tradition and law, it is strictly kept secret unless an indictment is issued. Barr could begin working with a judge to lobby for the release of some or all of the relevant information, but he hasn’t done that.

And in his testimony on Tuesday, Barr expressed skepticism that giving Congress — let alone the public — grand jury information, as covered in the law referred to as “6(e),” could ever be appropriate.

“I can envision a situation where, under appropriate safeguards, that information would be shared,” Barr said, referring to the redactions generally. “I also think there may be, under appropriate safeguard, a way of people verifying that these categories were not abused, and at the end of the day, that the information is bona fide, privacy-related information and so forth, I’m willing to work with the Judiciary Committees on that. But, I’ll have to say, until someone shows me a provision in 6(e) that permits its release, Congress doesn’t get 6(e).”

“There’s plenty of discretion in 6(e) for you to make that,” said Rep. Ed Case (D-HI):

Case was referring to an exception for grand jury secrecy that allows the material to be revealed in judicial proceedings — or events that are akin to judicial proceedings.

But as legal analyst Luppe Luppen recently explained, for Congress to be considered as conducting something akin to a judicial proceeding, it will almost certainly have to begin the process of impeachment. In this case, the Judiciary Committee would likely have to begin impeaching President Donald Trump.

Luppen noted that, as in the Watergate case, there are other methods to get around the grand jury secrecy rules:

With or without the threat of impeachment, there is a possibility that Democrats could obtain disclosure if a court, recognizing that the fight over the Mueller materials is an extraordinary circumstance, exercises its authority over grand jury matters to make a disclosure. This is exactly what happened in 1974, when the grand jury materials from the Watergate special prosecutor’s investigation were handed over to Congress.

And as lawyer Ted Boutrous point out on Twitter:

But Barr appears deeply resistant to these approaches, and he could force Democrats’ hand.

Democratic leadership has been loathe to even discuss impeachment, and with Mueller’s conclusions in his final report now public, as characterized by Barr, the chances of successfully removing Trump from office seem even more remote than they were before.

But Democrats also want as much of the special counsel’s report and the evidence he gathered as they can possibly obtain. And given Barr’s statements on Tuesday, it seems that beginning impeachment proceedings may be best, or at least the most efficient, way to get it.

Democrats may end up deciding against this approach, for many reasons. Once the report is released, it could be so explosive that the additional details are not worth the effort; on the other hand, the report as released by Barr could portray Trump much more favorably than it is expected to, which could take the wind out of the sails for more aggressive tactics from Democrats. More likely, the report will include a series of troubling facts, many of which we already know, but none of which are enough to could convince Republicans to turn on Trump.

This could make the concealed grand jury testimony more alluring to Democrats. But there might still be reason to avoid going after it with the full force of Congress’s might. If, for example, the grand jury material largely appears related to periphery cases not central to the president’s behavior — such as, for example, testimony about Roger Stone related to additional charges similar to those that are already public — then it might not be worth the fight.

But if the concealed grand jury material seems like it is central to understanding some of Trump’s most troubling behavior, or that of important figures in his orbit or in positions of power, then the impetus for Democrats to get access to the testimony will be strong. That might give them the push they need to begin impeachment — if only to find out the truth.

 

 

Michael Brown Grand Juror Sues Prosecutor, Asking To Speak Out On Case

Michael Brown Grand Juror Sues Prosecutor, Asking To Speak Out On Case

By Joel Currier and Robert Patrick, St. Louis Post-Dispatch (TNS)

ST. LOUIS — A member of the grand jury that declined to file criminal charges against former Ferguson, Mo., Police Officer Darren Wilson in the death of Michael Brown sued St. Louis County Prosecutor Robert McCulloch on Monday for the right to speak publicly about the proceedings.

The suit says that the former juror, identified in court documents only as “Grand Juror Doe,” wishes to speak out to challenge public misconceptions about the case and that speaking publicly could “contribute to the current public dialogue concerning race relations” that was sparked by the Aug. 9 fatal shooting. It hints that jurors were not unanimous in their decision. Doe also wants “to advocate for legislative change to the way grand juries are conducted in Missouri,” the suit says, and more simply, be able to talk about the case “with close family members at home.”

The suit, filed in federal court in St. Louis, asks a judge to rule unconstitutional the Missouri law that would criminalize any of Doe’s comments “about Doe’s experiences as a state grand juror” and bar McCulloch from prosecuting Doe.

The plaintiff claims McCulloch’s characterization of the grand jury’s view of the evidence was at odds with Doe’s opinions of the case, that the public’s understanding of the grand jurors’ views is “not entirely accurate.”

The investigation of Wilson “had a stronger focus on the victim than in other grand jury cases,” the suit says. The presentation of evidence and “the State’s counsel to the grand jury. . . differed markedly and in significant ways. . . from the hundreds of matters presented to the grand jury earlier in its term.” The suit also claims the legal guidelines presented to jurors in applying facts of the case were “muddled and untimely” compared to other cases.

The suit says Doe wants to challenge the accuracy of public statements and opinions about the grand jury, “especially the implication that all grand jurors believed that there was no support for any charges.” It says that the heavily redacted grand jury documents that have been released, and the lack of context, “do not fully portray the proceedings before the grand jury.”

State law says it is a misdemeanor for grand jurors to discuss their service. The plaintiff is being represented by the American Civil Liberties Union and the Town and Country law firm of Sowers & Wolf.

“The rules of secrecy must yield because this is a highly unusual circumstance,” Tony Rothert, legal director of the ACLU of Missouri, said in a prepared statement. “The First Amendment prevents the state from imposing a lifetime gag order in cases where the prosecuting attorney has purported to be transparent.”

Jeffrey Mittman, executive director of the ACLU, said that as both the public and legislatures are currently debating police misconduct, racial profiling and other issues sparked by the Brown shooting, “We believe that the public and the legislature need to have this information and we’re working to convince a judge.”

Mittman said that the information about the grand jury investigation had been entirely “one-sided” and “government-directed” to date.

“How this process worked. . . is solely being driven by the government,” he told the Post-Dispatch, adding, “as you know, the First Amendment doesn’t allow that.”

The public is entitled to “complete information not controlled by the government.”

Asked Doe’s gender, how Doe approached lawyers, whether Doe’s opinions represent the opinion of other grand jurors and whether Doe’s suit might prompt other jurors to come forward, Mittman offered essentially similar versions of the same statement: “This grand juror is being very respectful of the legal process and does not want to share information that it is not legally permissible to share.”

One reason the grand jury process is secret is to protect the target if an indictment is not returned, Mittman said. The court, he said, will look at reasons to break that secrecy: the interests of public policy and the ongoing debate about “are grand juries the best way to deal with police misconduct?”

Mittman did not want to speculate about how long the case will take to be resolved. “We certainly hope to work cooperatively with the attorneys for the county. It would be wonderful if there could be an expedited process.”

A McCulloch spokesman declined to comment, saying that McCulloch had not yet been served with the suit.

The grand jury Nov. 24 announced it would not indict Wilson for killing Brown.

Photo: Joe Newman via Flickr

Police Killings Increase Calls For Independent Investigations

Police Killings Increase Calls For Independent Investigations

By Tony Pugh, McClatchy Washington Bureau (TNS)

WASHINGTON — When New York state Attorney General Eric Schneiderman recently sought authority to investigate and prosecute cases that involve police killings of unarmed civilians, it was a watershed moment for Vincent Warren.

The executive director of the Center for Constitutional Rights, a nonprofit legal group that grew out of the civil rights movement, Warren has long called for independent investigations when there are questions about the use of lethal force by police.

Local prosecutors are ill-suited for the investigations, Warren said, because their cozy working relationships with local police can be a conflict of interest. But as he and other activists in the police accountability movement had called for change, their proposals were ignored as a solution in need of a problem.

With little support from politicians, prosecutors and the police themselves, Warren and others were largely dismissed as criminal-justice critics too eager to assume foul play when disputed police encounters weren’t adjudicated to their liking.

That perception changed with Eric Garner’s death in July after an aggressive chokehold and bodily restraint by New York City police officers.

When a Staten Island grand jury decided not to indict the officers, despite video footage of the incident, an eruption of nationwide protests and an erosion of public trust pushed Schneiderman to seek what Warren had called for all along.

New York Gov. Andrew Cuomo is considering Schneiderman’s call for independent police investigations. Warren is keeping his fingers crossed.

“I’m gratified that Attorney General Schneiderman has proposed a sensible solution to this long-standing problem,” Warren said recently. “Amidst all the hand-wringing and soul-searching on this issue, this is very much a step in the right direction.”

Warren said jurisdictions nationwide should consider similar measures, such as appointing special prosecutors, as questionable police shootings of black men created uncertainty about local prosecutors’ ability and willingness to police the police.

“Before special prosecutors were used at the federal level, there was a lot of state experience with them, and it’s not unusual to use some kind of model where, if there’s a perception of bias, you create a special prosecutor’s office” or provide another avenue for outside investigation, said Katy Harriger, a professor of politics and constitutional law at Wake Forest University in Winston-Salem, N.C.

John Malcolm, the director of the Edwin Meese III Center for Legal and Judicial Studies at the conservative Heritage Foundation, said he was unsure what was prompting Schneiderman’s call for special investigative authority.

“If it is done to give the public confidence that such investigations are being carried out thoroughly and in an unbiased fashion, that’s a good thing,” Malcolm said. “If he’s doing it just to second-guess how a particular investigation was run, then I would say that is not a good thing.”

In the police-involved deaths of Garner and of Michael Brown in Ferguson, Mo., local prosecutors investigated the cases and presented evidence to the grand juries. The veracity of their investigations, , however, has come under scrutiny after the grand juries didn’t indict the police in either incident.

By 50 to 37 percent, most Americans think the grand jury made the right decision in the Ferguson case, according to a recent survey by the Pew Research Center and USA Today. In the Garner case, 57 percent thought the grand jury erred by not indicting police, compared with 22 percent who thought the jurors got it right.

Public opinion about the failure to locally prosecute the Garner and Brown deaths has differed along racial lines, however.

While a majority of whites and blacks thought Garner’s death called for prosecution, 80 percent of blacks thought the grand jury erred in not charging police in Brown’s death. Sixty-four percent of whites thought no charges were warranted, Pew found.

Most blacks — 64 percent in the Brown case and 62 percent in the Garner case — say race was a major factor in the grand jury’s decisions. Only 16 percent of whites agreed in the Brown case and just 18 percent in Garner’s.

The numbers surely reflect some blacks’ long-standing perceptions of bias in the criminal justice system. It’s unclear whether outside investigations would alter that dynamic.

“The true answer is to have diversity among the attorneys in prosecutors’ offices, and for prosecutors’ offices to continue working on their relationship with the communities they serve, so that there is trust and transparency in the justice process,” said Melba Pearson, the president of the National Black Prosecutors Association.

While an independent prosecutor may be a useful tool in some circumstances, “it isn’t necessarily the answer for all police shooting cases,” she said.

Some state prosecutors already have units or individual prosecutors dedicated to public officials, including police officers, who have allegedly committed crimes.

“This may be a good option to expand upon,” Pearson said.

In light of the video of Garner’s arrest, Warren, of the Center for Constitutional Rights, said the New York prosecutors were either incompetent in presenting their case to the grand jury or simply didn’t want the officers charged.

“And if the prosecutor is giving the police officer more of the benefit of the doubt than the average criminal defendant, then that is a built-in conflict,” he said.

Malcolm, of the Heritage Foundation, said, “It all depends on how broadly you define ‘conflict of interest.’ ”

Because police arrest and question suspects, collect evidence and typically become key prosecution witnesses, they, by necessity, have a “very, very close” and trusting relationship with prosecutors, said Malcolm, a former federal prosecutor.

“But I do think that there are ethical prosecutors who don’t like police corruption or overzealous police officers who will unnecessarily harm the public, and who could do a thorough, competent and unbiased job with these investigations,” he said.

Still, Malcolm said, when the public questions — rightly or wrongly — the integrity of a grand jury ruling because of the relationship between the police and prosecutors, as in the Garner case, having the state attorney general’s office investigate “would remove that taint or at least minimize the likelihood that that taint might follow a decision not to prosecute.”

While independent investigations would improve public confidence in the criminal justice system, said Harriger of Wake Forest, they were no magic bullet and would address only one symptom of deeper problems in the system.

She said more police training on the use of force and multicultural communications would also help. Scrapping the election of local prosecutors should also be considered as a way to eliminate the appearance of conflicts, Harriger said.

“The criminal justice system is a very complex organism, and if you just poke at one part of it, you can’t really get at the problems,” she said. “You need to look at it across the board and all the ways it works.”

AFP Photo/Mat Hayward

Two Grand Juries, The Same Disappointing Result

Two Grand Juries, The Same Disappointing Result

No expressions of sympathy or regret can resurrect Eric Garner, the New York City man killed by police in July. Garner died after an officer placed him in what appears to be a chokehold during an arrest for allegedly selling untaxed cigarettes, an offense not usually regarded as a capital crime.

But, at the very least, officer Daniel Pantaleo (or his representatives) showed a spark of decency after a Staten Island grand jury decided not to indict him for any crime. “I feel very bad about the death of Mr. Garner,” he said in a statement. “My family and I include him and his family in our prayers and I hope that they will accept my personal condolences for their loss.”

That’s just one contrast to events in Ferguson, Missouri, where Officer Darren Wilson showed no hint of sympathy for teenager Michael Brown or his family. “I don’t think it’s haunting. It’s always going to be something that happened,” Wilson said in a televised interview.

There were other equally stark contrasts. While Brown’s response to Wilson will always be the subject of dispute, bystanders recorded video of Garner’s arrest and posted it on the Internet, where it went viral. There is no disputing Garner’s tragic last words as Pantaleo’s arm lingers around his neck: “I can’t breathe. I can’t breathe.” Even Fox News’ bellicose Bill O’Reilly was moved to observe that Garner “didn’t deserve what happened to him.”

But the greatest contrast between the deaths of Garner and Brown may have been in the reactions of elected and civic leaders. Backed by its politicians, Ferguson’s police force responded to criticism of Brown’s death with excuses, equivocation and armored personnel carriers.

In New York City, Mayor Bill de Blasio took to the podium to express sympathy for Garner’s loved ones, and equally important, a simple shared humanity. Compassion. Understanding. Empathy. “This is now a national moment of grief, a national moment of pain,” he said. Members of Congress — liberals and conservatives, Republicans and Democrats — joined to criticize the grand jury’s decision.

That matters. All citizens, regardless of color or creed or religion, want to believe that the people who govern them share their fears, their hopes, their aspirations. Or, at the very least, that their leaders can understand their frustrations.

Even now, that’s not always the case in the United States, especially when it comes to law and order. The criminal justice system is one of the last bastions of blatant racism, a tangled net of explicit prejudices and implicit biases, of rank stereotypes and unfair perceptions, a web that ensnares black men disproportionately. Countless studies conducted by experts have borne out the view held by so many black Americans: We do not stand equally before the bar of justice.

Black motorists are subjected to more traffic stops than white drivers. Black men and women are arrested more often for drug offenses, even though we are no more likely to be drug users than whites. And the use of the death penalty tilts against black defendants and devalues black lives: It is more likely to be meted out if the victim is white.

Has there been progress? Of course there has. The nation’s top law enforcement official, the attorney general, is a black man. But the nation’s criminal justice system started out in a hellishly low place — where officials were complicit in lynchings, where the wealthy extracted unpaid labor from black men by having them arrested, where black crime victims were ignored. De Blasio referred to that unfortunate history: “We’re not dealing with years of racism leading up to it, or decades of racism — we are dealing with centuries of racism that have brought us to this day.”

For all the striking contrasts between the reactions to the deaths of Brown and Garner, there was one stunning consistency: Grand juries saw no evidence of wrongdoing by a white police officer who killed an unarmed black man. Bear in mind that a New York City medical examiner, citing “compression of his chest and prone position,” ruled Garner’s death a homicide. Still, a Staten Island grand jury found nothing to suggest that Pantaleo committed any criminal offense.

Some things haven’t changed at all.

Photo: Demonstrators in Baltimore protest the Staten Island, NY, grand jury’s decision not to indict officer Daniel Pantaleo in the Eric Garner chokehold case, on Thursday, Dec. 4, 2014. (Amy Davis/Baltimore Sun/TNS)