Orange Duce

[jhu72]

Wilkerson is an idiot, ever believing anything the conman in chief and his grifting henchmen said. No sympathy for any of these clowns. Conmen coning each other. Last one out is fu*ked.

[Farfromgeneva]

Oh my!

Edited out was this quote I heard “And Hitler too. The Jews really missed the boat there. The man kept them warm and pursued scientific inquiry with their involvement. If they hadn’t been so selfishly focused on little micro work issues they would’ve seen the technology transfer opportunities the Germans provided them with respect to internal combustion and genetics!”

Trump: I could "easily" be Israel's prime minister

Erin Doherty
Erin Doherty
Barak Ravid

Axios on facebook

Axios on twitter

Axios on linkedin

Axios on email
Former U.S. President Donald Trump speaks at a campaign rally at Legacy Sports USA on October 09, 2022 in Mesa, Arizona
Former President Trump speaks at a campaign rally at Legacy Sports on Oct. 9 in Mesa, Ariz. Photo: Mario Tama/Getty Images
Former President Trump said Sunday that he "could easily be" the prime minister of Israel in a post on his Truth Social account, in which he also said that Jewish people in the U.S. should be more appreciative of what he has done for Israel.

Between the lines: It is not clear what prompted Trump's remarks, but they echo similar comments that the former president has made about the U.S. Jewish community since he was elected in 2016.

What he's saying: "No President has done more for Israel than I have," Trump wrote on his Truth Social account.

"Somewhat surprisingly, however, our wonderful Evangelicals are far more appreciative of this than the people of the Jewish faith, especially those living in the U.S.," Trump wrote.
"Those living in Israel, though, are a different story - Highest approval rating in the World, could easily be P.M.!"
"U.S. Jews have to get their act together and appreciate what they have in Israel - Before it is too late!"
The CEO and national director of the Anti-Defamation League Jonathan Greenblatt said Sunday in a statement: "We don't need the former president, who curries favor with extremists and antisemites, to lecture us about the U.S.-Israel relationship."

"It is not about a quid pro quo; it rests on shared values and security interests. This "Jewsplaining" is insulting and disgusting."
Flashback: In 2021, Trump accused U.S. Jews who are not orthodox of "no longer loving Israel" and claimed "evangelical Christians love Israel more than the Jews in this country."

Trump added at the time that the fact that around 75% of Jewish voters were planning to support Joe Biden in 2020 was evidence that they either "don't like Israel or don't care about Israel."
Trump also claimed that Israel once had "absolute power" over Congress but today it's "the exact opposite," referring to former President Obama and President Biden.

Trump's 2021 remarks drew condemnation from the ADL, the American Jewish Committee and other organizations, who said they were antisemitic.
"Past support for Israel doesn't give him license to traffic in radioactive antisemitic tropes — or peddle unfounded conclusions about the unbreakable ties that bind American Jews to Israel. Enough!" the American Jewish Committee wrote on Twitter at the time.
The big picture: Trump's remarks were published on the eve of the Jewish holiday of Simchat Torah, which marks the conclusion of the annual Torah reading in synagogues and the beginning of a new cycle.

Trump while in office was very supportive of Israel and Israeli Prime Minister Benjamin Netanyahu. He moved the U.S. Embassy to Jerusalem, and he recognized Israeli sovereignty in the Golan Heights.
Go deeper... Trump blasts Netanyahu for disloyalty: "F**k him"

Editor's note: This story has been updated with a statement from ADL CEO and national director Jonathan Greenblatt.

[NattyBohChamps04]

Oh my!

Edited out was this quote I heard “And Hitler too. The Jews really missed the boat there. The man kept them warm and pursued scientific inquiry with their involvement. If they hadn’t been so selfishly focused on little micro work issues they would’ve seen the technology transfer opportunities the Germans provided them with respect to internal combustion and genetics!”

Trump: I could "easily" be Israel's prime minister

Erin Doherty
Erin Doherty
Barak Ravid

Axios on facebook

Axios on twitter

Axios on linkedin

Axios on email
Former U.S. President Donald Trump speaks at a campaign rally at Legacy Sports USA on October 09, 2022 in Mesa, Arizona
Former President Trump speaks at a campaign rally at Legacy Sports on Oct. 9 in Mesa, Ariz. Photo: Mario Tama/Getty Images
Former President Trump said Sunday that he "could easily be" the prime minister of Israel in a post on his Truth Social account, in which he also said that Jewish people in the U.S. should be more appreciative of what he has done for Israel.

Between the lines: It is not clear what prompted Trump's remarks, but they echo similar comments that the former president has made about the U.S. Jewish community since he was elected in 2016.

What he's saying: "No President has done more for Israel than I have," Trump wrote on his Truth Social account.

"Somewhat surprisingly, however, our wonderful Evangelicals are far more appreciative of this than the people of the Jewish faith, especially those living in the U.S.," Trump wrote.
"Those living in Israel, though, are a different story - Highest approval rating in the World, could easily be P.M.!"
"U.S. Jews have to get their act together and appreciate what they have in Israel - Before it is too late!"
The CEO and national director of the Anti-Defamation League Jonathan Greenblatt said Sunday in a statement: "We don't need the former president, who curries favor with extremists and antisemites, to lecture us about the U.S.-Israel relationship."

"It is not about a quid pro quo; it rests on shared values and security interests. This "Jewsplaining" is insulting and disgusting."
Flashback: In 2021, Trump accused U.S. Jews who are not orthodox of "no longer loving Israel" and claimed "evangelical Christians love Israel more than the Jews in this country."

Trump added at the time that the fact that around 75% of Jewish voters were planning to support Joe Biden in 2020 was evidence that they either "don't like Israel or don't care about Israel."
Trump also claimed that Israel once had "absolute power" over Congress but today it's "the exact opposite," referring to former President Obama and President Biden.

Trump's 2021 remarks drew condemnation from the ADL, the American Jewish Committee and other organizations, who said they were antisemitic.
"Past support for Israel doesn't give him license to traffic in radioactive antisemitic tropes — or peddle unfounded conclusions about the unbreakable ties that bind American Jews to Israel. Enough!" the American Jewish Committee wrote on Twitter at the time.
The big picture: Trump's remarks were published on the eve of the Jewish holiday of Simchat Torah, which marks the conclusion of the annual Torah reading in synagogues and the beginning of a new cycle.

Trump while in office was very supportive of Israel and Israeli Prime Minister Benjamin Netanyahu. He moved the U.S. Embassy to Jerusalem, and he recognized Israeli sovereignty in the Golan Heights.
Go deeper... Trump blasts Netanyahu for disloyalty: "F**k him"

Editor's note: This story has been updated with a statement from ADL CEO and national director Jonathan Greenblatt.

It's such a weird disconnect. Trump is kind of right that evangelicals may love Israel more than many US Jews. You've got the whole 2nd coming as a part of that. His die hard supporters certainly seem to love Israel and hate Jews as well. Doesn't square logically.

And Trump has also done a lot for Israel as far as US policy stuff. At the same time he's done a lot to hurt actual Jewish people in the US and elsewhere and encourage and elevate violence against Jews. Just look at how many Jewish places were vandalized and threatened after his election for one.

It's like we're taking crazy pills when trying to analyze it.

[Farfromgeneva]

Oh my!

Edited out was this quote I heard “And Hitler too. The Jews really missed the boat there. The man kept them warm and pursued scientific inquiry with their involvement. If they hadn’t been so selfishly focused on little micro work issues they would’ve seen the technology transfer opportunities the Germans provided them with respect to internal combustion and genetics!”

Trump: I could "easily" be Israel's prime minister

Erin Doherty
Erin Doherty
Barak Ravid

Axios on facebook

Axios on twitter

Axios on linkedin

Axios on email
Former U.S. President Donald Trump speaks at a campaign rally at Legacy Sports USA on October 09, 2022 in Mesa, Arizona
Former President Trump speaks at a campaign rally at Legacy Sports on Oct. 9 in Mesa, Ariz. Photo: Mario Tama/Getty Images
Former President Trump said Sunday that he "could easily be" the prime minister of Israel in a post on his Truth Social account, in which he also said that Jewish people in the U.S. should be more appreciative of what he has done for Israel.

Between the lines: It is not clear what prompted Trump's remarks, but they echo similar comments that the former president has made about the U.S. Jewish community since he was elected in 2016.

What he's saying: "No President has done more for Israel than I have," Trump wrote on his Truth Social account.

"Somewhat surprisingly, however, our wonderful Evangelicals are far more appreciative of this than the people of the Jewish faith, especially those living in the U.S.," Trump wrote.
"Those living in Israel, though, are a different story - Highest approval rating in the World, could easily be P.M.!"
"U.S. Jews have to get their act together and appreciate what they have in Israel - Before it is too late!"
The CEO and national director of the Anti-Defamation League Jonathan Greenblatt said Sunday in a statement: "We don't need the former president, who curries favor with extremists and antisemites, to lecture us about the U.S.-Israel relationship."

"It is not about a quid pro quo; it rests on shared values and security interests. This "Jewsplaining" is insulting and disgusting."
Flashback: In 2021, Trump accused U.S. Jews who are not orthodox of "no longer loving Israel" and claimed "evangelical Christians love Israel more than the Jews in this country."

Trump added at the time that the fact that around 75% of Jewish voters were planning to support Joe Biden in 2020 was evidence that they either "don't like Israel or don't care about Israel."
Trump also claimed that Israel once had "absolute power" over Congress but today it's "the exact opposite," referring to former President Obama and President Biden.

Trump's 2021 remarks drew condemnation from the ADL, the American Jewish Committee and other organizations, who said they were antisemitic.
"Past support for Israel doesn't give him license to traffic in radioactive antisemitic tropes — or peddle unfounded conclusions about the unbreakable ties that bind American Jews to Israel. Enough!" the American Jewish Committee wrote on Twitter at the time.
The big picture: Trump's remarks were published on the eve of the Jewish holiday of Simchat Torah, which marks the conclusion of the annual Torah reading in synagogues and the beginning of a new cycle.

Trump while in office was very supportive of Israel and Israeli Prime Minister Benjamin Netanyahu. He moved the U.S. Embassy to Jerusalem, and he recognized Israeli sovereignty in the Golan Heights.
Go deeper... Trump blasts Netanyahu for disloyalty: "F**k him"

Editor's note: This story has been updated with a statement from ADL CEO and national director Jonathan Greenblatt.

It's such a weird disconnect. Trump is kind of right that evangelicals may love Israel more than many US Jews. You've got the whole 2nd coming as a part of that. His die hard supporters certainly seem to love Israel and hate Jews as well. Doesn't square logically.

And Trump has also done a lot for Israel as far as US policy stuff. At the same time he's done a lot to hurt actual Jewish people in the US and elsewhere and encourage and elevate violence against Jews. Just look at how many Jewish places were vandalized and threatened after his election for one.

It's like we're taking crazy pills when trying to analyze it.

https://www.goodreads.com/work/quotes/3324245-la-chute

A few samples

You know what charm is: a way of getting the answer yes without having asked any clear question.
Albert Camus, The Fall

I used to advertise my loyalty and I don't believe there is a single person I loved that I didn't eventually betray.
Albert Camus, The Fall

People hasten to judge in order not to be judged themselves.
Albert Camus, The Fall

[CU88]

Oh my!

Edited out was this quote I heard “And Hitler too. The Jews really missed the boat there. The man kept them warm and pursued scientific inquiry with their involvement. If they hadn’t been so selfishly focused on little micro work issues they would’ve seen the technology transfer opportunities the Germans provided them with respect to internal combustion and genetics!”

Trump: I could "easily" be Israel's prime minister

Erin Doherty
Erin Doherty
Barak Ravid

Axios on facebook

Axios on twitter

Axios on linkedin

Axios on email
Former U.S. President Donald Trump speaks at a campaign rally at Legacy Sports USA on October 09, 2022 in Mesa, Arizona
Former President Trump speaks at a campaign rally at Legacy Sports on Oct. 9 in Mesa, Ariz. Photo: Mario Tama/Getty Images
Former President Trump said Sunday that he "could easily be" the prime minister of Israel in a post on his Truth Social account, in which he also said that Jewish people in the U.S. should be more appreciative of what he has done for Israel.

Between the lines: It is not clear what prompted Trump's remarks, but they echo similar comments that the former president has made about the U.S. Jewish community since he was elected in 2016.

What he's saying: "No President has done more for Israel than I have," Trump wrote on his Truth Social account.

"Somewhat surprisingly, however, our wonderful Evangelicals are far more appreciative of this than the people of the Jewish faith, especially those living in the U.S.," Trump wrote.
"Those living in Israel, though, are a different story - Highest approval rating in the World, could easily be P.M.!"
"U.S. Jews have to get their act together and appreciate what they have in Israel - Before it is too late!"
The CEO and national director of the Anti-Defamation League Jonathan Greenblatt said Sunday in a statement: "We don't need the former president, who curries favor with extremists and antisemites, to lecture us about the U.S.-Israel relationship."

"It is not about a quid pro quo; it rests on shared values and security interests. This "Jewsplaining" is insulting and disgusting."
Flashback: In 2021, Trump accused U.S. Jews who are not orthodox of "no longer loving Israel" and claimed "evangelical Christians love Israel more than the Jews in this country."

Trump added at the time that the fact that around 75% of Jewish voters were planning to support Joe Biden in 2020 was evidence that they either "don't like Israel or don't care about Israel."
Trump also claimed that Israel once had "absolute power" over Congress but today it's "the exact opposite," referring to former President Obama and President Biden.

Trump's 2021 remarks drew condemnation from the ADL, the American Jewish Committee and other organizations, who said they were antisemitic.
"Past support for Israel doesn't give him license to traffic in radioactive antisemitic tropes — or peddle unfounded conclusions about the unbreakable ties that bind American Jews to Israel. Enough!" the American Jewish Committee wrote on Twitter at the time.
The big picture: Trump's remarks were published on the eve of the Jewish holiday of Simchat Torah, which marks the conclusion of the annual Torah reading in synagogues and the beginning of a new cycle.

Trump while in office was very supportive of Israel and Israeli Prime Minister Benjamin Netanyahu. He moved the U.S. Embassy to Jerusalem, and he recognized Israeli sovereignty in the Golan Heights.
Go deeper... Trump blasts Netanyahu for disloyalty: "F**k him"

Editor's note: This story has been updated with a statement from ADL CEO and national director Jonathan Greenblatt.

It's such a weird disconnect. Trump is kind of right that evangelicals may love Israel more than many US Jews. You've got the whole 2nd coming as a part of that. His die hard supporters certainly seem to love Israel and hate Jews as well. Doesn't square logically.

And Trump has also done a lot for Israel as far as US policy stuff. At the same time he's done a lot to hurt actual Jewish people in the US and elsewhere and encourage and elevate violence against Jews. Just look at how many Jewish places were vandalized and threatened after his election for one.

It's like we're taking crazy pills when trying to analyze it.

You nailed it!

[Farfromgeneva]

https://www.theringer.com/2022/10/18/23 ... nald-trump

The Case for Indicting Donald Trump

Atlantic staff writer Frank Foer discusses why the indictment of Trump is now “inevitable”

Derek ThompsonOct 18, 2022, 8:36am EDT
Donald Trump Holds Campaign Rally In Support Of Arizona GOP Candidates Photo by Mario Tama/Getty Images
Atlantic staff writer Frank Foer discusses why the indictment of Trump is now “inevitable”

For years, liberals have deluded themselves into thinking that Donald Trump was always on the verge of some calamitous legal defeat. Robert Mueller was made into an icon of the left. But no charges were filed. The Russiagate theory had a lot of smoke, and even some fire, but it failed to put Trump in a courtroom. At this point, you could be forgiven for checking out entirely on the efforts to charge Trump with crimes, since they all seem to end the same way. Without an indictment.

If that’s going to change, it will largely rest on the decision making of one man: Merrick Garland, the attorney general of the United States. In a recent essay for The Atlantic, staff writer Frank Foer spent hours talking to Garland to understand who he is, how he thinks, and how his approach to law could help us predict the next chapter of the Trump legal saga. Foer comes away with a big prediction: The indictment of Trump is now “inevitable.” And he’s here to tell us why.


In the excerpt below, Foer examines how Merrick Garland’s personality influences his running of the United States Department of Justice.

Derek Thompson: So you recently wrote a profile of U.S. Attorney General Merrick Garland, after spending some time with him and talking to the people around him. So for people who are curious to know, is this the man who will become the first attorney general in American history to indict a former president? What should we all know about who Merrick Garland is?

Frank Foer: I think most people knew of Merrick Garland before he became attorney general as the guy who never became a Supreme Court justice. I mean, it was his lifelong ambition to be a Supreme Court justice. On three separate occasions, Barack Obama considered nominating him for the job. And it was only on the third occasion, when he seemed too old to get the job, that it actually fell into his lap. And then it was denied to him by Mitch McConnell, who transgressed every norm in the history of the U.S. Senate by denying Merrick Garland even a hearing before the Senate Judiciary Committee.

And he is a guy who is known as very cautious, institutionalist. He’s a creature of the legal establishment. And so he inherited this job of attorney general, as the nation’s chief law-enforcement officer, coming on the heels of the Trump administration, which had essentially trashed the Department of Justice. It had run roughshod over all of its norms and used the department to punish political enemies and reward friends. And Garland was the guy who came in to restore the Justice Department, to have it return to ways that it had operated before the Trump administration ruined the place.

And so that was his job, that was his mission. And then the day before he’s announced as attorney general is January 6, 2021. And so he comes into the job and all of a sudden, he thinks he’s going to do one thing, and this massive case falls into his lap. And I think, when I talked to people around him, they all said he came in hoping that he was going to be the guy who was going to lower the temperature around legal issues in this country. And instead, he’s faced with this case that’s filled with all sorts of contentious issues that might very well result in him having to indict the last president of the United States.

And so people have always wondered, is he really going to be the guy who’s going to go all the way, to do this thing that’s so unprecedented? Or is he going to revert to all of these cautious instincts that he’d accumulated over the course of a lifetime?

Thompson: He is a deep institutionalist. I mean, even as Garland’s Justice Department is investigating the president, he is also defending Trump in a defamation lawsuit filed by E. Jean Carroll, a writer who accused Trump of raping her. He’s also, as you wrote in The Atlantic, permitted the special prosecutor John Durham to continue to investigate the origins of the Russiagate case.

So it’s really bizarre, for me, as someone who is not at all deep in the inner workings of the Justice Department, to think about this guy overseeing a bureaucracy that is simultaneously investigating a former president, and serving as his attorney. Maybe just help us unscramble this. How is all this happening at once?

Foer: So there was a phrase that you hear people in the Justice Department attribute to Merrick Garland, which is “return to normal order.” And so when he looks at something like the two instances that you mentioned, his instinct is, “Well, these are prosecutors in the Justice Department who are telling me that this is the right course for us to take. And I look at the precedent, I look at everything that’s happened in U.S. legal history, and I say, ‘Well, all right. I may not like doing either of these things, but if I’m just adhering to historical practices and norms, then I really don’t have a choice but to do these things.’”

And so that’s one thing. And then I think you look at the cases against Trump and other aspects, he keeps returning to another phrase, which is that “no person is above the law.” And so that’s the norm that he’s trying to preserve in those other cases. And so it does create this dissonance where, on the one hand, he’s forced to defend Trump. And then on the other hand, he’s forced to consider indicting Trump.

This excerpt was edited for clarity. Listen to the entire episode here and subscribe to the Plain English feed on Spotify.

[kramerica.inc]

https://www.politico.com/news/magazine/ ... s-00062329

The Real Reason Trump and Hunter Biden Might Not Get Indicted
Prosecutors aren’t robots. They have wide discretion when it comes to deciding whether to indict someone.

10/19/2022 04:30 AM EDT

Ankush Khardori, an attorney and former federal prosecutor, is a POLITICO Magazine contributing editor.

These are boom times for the country’s armchair prosecutors. Every day seems to bring some fresh new possibility or development in a high-profile criminal investigation, along with the opportunity to speculate about whether a major public figure will wind up in prison. Most of the time these days, we’re talking about Donald Trump, but of course the current president’s son, Hunter Biden, is also under federal criminal investigation, and that has generated similar questions about how that investigation will be resolved.

Much of this commentary, however, has relied on a mechanistic account of how federal prosecutors operate in complex cases: an assumption that if there is sufficient evidence of a crime, then it will, or at least should be, prosecuted. That’s incomplete at best and misleading at worst. The result has been a widespread over-simplification of the questions that Attorney General Merrick Garland and the prosecutors working on these investigations will need to confront — and the distinct possibility that, one way or another, many people will be confused or disappointed if their preferred target is not ultimately indicted.

It is worth taking a step back and understanding the decision-making framework that is supposed to govern whether the Justice Department seeks an indictment of someone. The department has a set of policies that govern such “charging decisions,” but they provide prosecutors with discretion in determining whether to criminally charge someone, and in the Trump and Biden cases, that discretionary element could be crucial.

Generally speaking, there are two prongs to this internal charging analysis under Justice Department policy — one that is legal and one that is prudential — and both must be satisfied.

First, prosecutors need to determine that they would actually be able to convict the potential defendant at a trial. Justice Department policy explains that prosecutors “should commence or recommend federal prosecution” if they believe that they can “probably” get a conviction at trial based on the “admissible evidence.” Put differently, they must believe that they can actually convince a jury to unanimously conclude that the defendant committed each element of the relevant criminal offense beyond a reasonable doubt, notwithstanding the possible defenses at trial, which prosecutors also take into account when making their decision. The core of this exercise is a rigorous analysis of the admissible evidence under specific federal criminal statutes and the case law governing those statues.

Second, in addition to the legal analysis, prosecutors also need to consider a host of discretionary factors, including some that might weigh against charging either Trump or Hunter Biden. In particular, prosecutors must consider whether “(1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.” The Justice Department identifies nine different subsidiary considerations that might weigh for or against a finding that a prosecution would serve a “substantial federal interest.” The list — which is not exhaustive — includes the seriousness of the offense, the deterrent effect of a prosecution, the person’s “culpability in connection with the offense,” his criminal history, his “personal circumstances,” and the “probable sentence or other consequences if the person is convicted.”

Ordinarily, federal prosecutors do not need to give these much thought. In the standard case — which tends to involve illegal immigration, guns or drugs — these considerations are either inconsequential or trivial, both because the public expects certain types of cases to be federally prosecuted and because prosecutors have a significant body of experience and past practice to guide their charging decisions.

Things are not so simple, however, when the underlying conduct is either relatively unusual or concerns a subject in which prosecutors tend to be more flexible in their approach to criminal charges.

A recent report from the Washington Post about the Hunter Biden investigation illustrated this problem well, if somewhat obliquely. The story reported that “[f]ederal agents” investigating Biden “have gathered what they believe is sufficient evidence to charge him with tax crimes and a false statement related to a gun purchase” in October 2018, when he allegedly lied on an ATF form that asks whether the purchaser is a drug user.

This was an odd story, for a couple of reasons. For one thing, as the article noted in passing, it is up to Justice Department prosecutors to make charging decisions, not FBI agents. The reason is not simply one of ego. Prosecutors are generally much better positioned — and are trained — to assess the relevant legal considerations, including, most obviously, what constitutes “admissible evidence” and whether the government can “probably” obtain a conviction at trial. When I was a federal prosecutor, I had the good fortune of working with some outstanding FBI agents, but virtually every prosecutor will, at some point, have had to explain to some case agents that there was not, in fact, enough evidence to charge a case despite what they thought; that they needed to obtain more evidence if prosecutors were going to seek an indictment; or, perhaps in the extreme, that they needed to close the investigation despite their best efforts to develop a prosecutable case.

The other issue that was virtually absent from the Post’s story was any consideration of how the sorts of allegations apparently at issue in the Biden investigation are resolved in other federal criminal investigations. Tax evasion cases are notoriously tricky because they usually require a heightened level of criminal intent — that the defendant actually knew that what he was doing was illegal, as opposed to simply engaging in unseemly but legal accounting shenanigans. This can be difficult if there were lawyers or accountants involved, which is one reason why even egregious tax evasion cases often reach seemingly baffling conclusions — like when, during the Trump administration, the Justice Department declined to prosecute a billionaire private equity CEO who resolved the investigation by agreeing to pay nearly $140 million in taxes and penalties.

The same issue applies to the potential false statement charge against Biden that FBI agents reportedly identified. When I was just starting as a prosecutor and worked on low-level gun cases in the Eastern District of Virginia, we focused pretty much exclusively on just one type of case — when the defendant was a so-called straw purchaser who had lied on the ATF’s form about the fact that he was buying the gun on behalf of a convicted felon who would otherwise have been unable to lawfully purchase it himself.

Biden has acknowledged that he was using drugs at the time of the purchase, but even so, it is far from clear from the reported facts that Biden would be prosecuted for this if he were not Joe Biden’s son. Among other things, he affirmatively admitted his drug use, has evidently been cooperating with the department’s investigation and also has no criminal history. Another reason is that many members of the public — and I suspect this applies to a lot of the people clamoring for Biden’s prosecution — would probably not want the Justice Department aggressively investigating and prosecuting every gun purchaser who might be using illegal drugs in private. This does not necessarily mean that there would — or should — be no consequences, but for a first-time offender on these facts, there would be credible arguments in favor of a declination (no charges filed), a non-prosecution agreement, a deferred prosecution agreement or a plea agreement with no recommended term of incarceration from prosecutors.

As for Trump, it is also not the case that the Justice Department will prosecute Trump simply because they have compiled evidence sufficient to convict him at trial based, for instance, on his apparent mishandling of sensitive government documents. The actual contents of the documents that Trump retained could weigh very heavily in this analysis even though we — the public — currently know virtually nothing about what is actually in them beyond the classification designations. They include documents marked at the highest level of classification — a very bad fact for Trump — but if, hypothetically, the Justice Department were to conclude that Trump took a bunch of scattered bits of classified information that are practically useless to third parties in isolation, that might weigh against charging him.

Another consideration that specialists in this area of prosecution have identified is whether the DOJ could reveal the contents of the documents in a court case without significantly harming national security. Still another set of relevant discretionary factors would be those that former FBI Director James Comey identified when he declined to recommend charges against Hillary Clinton. At the time, Comey explained that earlier prosecutions concerning the “mishandling or removal of classified information” involved “some combination of” several factors. They do not necessarily favor Trump — among other things, Comey identified “efforts to obstruct justice” as an aggravating factor — but the Justice Department is likely to look very closely at comparable cases to ensure that any resolution of the Trump investigation is consistent with the government’s approach to other cases, including the Clinton investigation and others that have not been extensively aired in public.

Many people have presented the situation confronting the Justice Department more simply — as a question of whether the Justice Department has sufficient evidence to indict Trump to convict him during a trial — in part based on public comments by Garland, but they are less straightforward than people are inclined to think. Last week provided a fairly representative example in the form of a lengthy story from The Atlantic that argued that Garland is likely to indict Trump based, among other things, on Garland’s “belief in the rule of law.”

I could go on about what “the rule of law” actually means as a legal or technical matter — and I have — but let’s focus on Garland’s approach, which he has described nearly verbatim in a series of speeches and remarks since taking office. “The essence of the rule of law is that like cases are treated alike,” Garland said when he accepted Joe Biden’s nomination. “That there not be one rule for Democrats, and another for Republicans, one rule for friends, another for foes, one rule for the powerful, another for the powerless.”

One interpretation of these comments is that no one is above the law, and that if you commit a crime, you should be prosecuted. There is, however, another way of reading Garland’s construction, and that is that the law should treat people equally irrespective of their personal status — race, gender, wealth, political affiliation and so forth. That could mean equally harshly or equally generously depending on the context.

Ultimately, the Justice Department could end up charging Trump, Biden, both of them, or neither of them. Yes, I am deliberately withholding my own predictions from this piece. But whatever the result, the department’s decisions are likely to be far more complicated than you might think.

[MDlaxfan76]

https://www.politico.com/news/magazine/ ... s-00062329

The Real Reason Trump and Hunter Biden Might Not Get Indicted
Prosecutors aren’t robots. They have wide discretion when it comes to deciding whether to indict someone.

10/19/2022 04:30 AM EDT

Ankush Khardori, an attorney and former federal prosecutor, is a POLITICO Magazine contributing editor.

These are boom times for the country’s armchair prosecutors. Every day seems to bring some fresh new possibility or development in a high-profile criminal investigation, along with the opportunity to speculate about whether a major public figure will wind up in prison. Most of the time these days, we’re talking about Donald Trump, but of course the current president’s son, Hunter Biden, is also under federal criminal investigation, and that has generated similar questions about how that investigation will be resolved.

Much of this commentary, however, has relied on a mechanistic account of how federal prosecutors operate in complex cases: an assumption that if there is sufficient evidence of a crime, then it will, or at least should be, prosecuted. That’s incomplete at best and misleading at worst. The result has been a widespread over-simplification of the questions that Attorney General Merrick Garland and the prosecutors working on these investigations will need to confront — and the distinct possibility that, one way or another, many people will be confused or disappointed if their preferred target is not ultimately indicted.

It is worth taking a step back and understanding the decision-making framework that is supposed to govern whether the Justice Department seeks an indictment of someone. The department has a set of policies that govern such “charging decisions,” but they provide prosecutors with discretion in determining whether to criminally charge someone, and in the Trump and Biden cases, that discretionary element could be crucial.

Generally speaking, there are two prongs to this internal charging analysis under Justice Department policy — one that is legal and one that is prudential — and both must be satisfied.

First, prosecutors need to determine that they would actually be able to convict the potential defendant at a trial. Justice Department policy explains that prosecutors “should commence or recommend federal prosecution” if they believe that they can “probably” get a conviction at trial based on the “admissible evidence.” Put differently, they must believe that they can actually convince a jury to unanimously conclude that the defendant committed each element of the relevant criminal offense beyond a reasonable doubt, notwithstanding the possible defenses at trial, which prosecutors also take into account when making their decision. The core of this exercise is a rigorous analysis of the admissible evidence under specific federal criminal statutes and the case law governing those statues.

Second, in addition to the legal analysis, prosecutors also need to consider a host of discretionary factors, including some that might weigh against charging either Trump or Hunter Biden. In particular, prosecutors must consider whether “(1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.” The Justice Department identifies nine different subsidiary considerations that might weigh for or against a finding that a prosecution would serve a “substantial federal interest.” The list — which is not exhaustive — includes the seriousness of the offense, the deterrent effect of a prosecution, the person’s “culpability in connection with the offense,” his criminal history, his “personal circumstances,” and the “probable sentence or other consequences if the person is convicted.”

Ordinarily, federal prosecutors do not need to give these much thought. In the standard case — which tends to involve illegal immigration, guns or drugs — these considerations are either inconsequential or trivial, both because the public expects certain types of cases to be federally prosecuted and because prosecutors have a significant body of experience and past practice to guide their charging decisions.

Things are not so simple, however, when the underlying conduct is either relatively unusual or concerns a subject in which prosecutors tend to be more flexible in their approach to criminal charges.

A recent report from the Washington Post about the Hunter Biden investigation illustrated this problem well, if somewhat obliquely. The story reported that “[f]ederal agents” investigating Biden “have gathered what they believe is sufficient evidence to charge him with tax crimes and a false statement related to a gun purchase” in October 2018, when he allegedly lied on an ATF form that asks whether the purchaser is a drug user.

This was an odd story, for a couple of reasons. For one thing, as the article noted in passing, it is up to Justice Department prosecutors to make charging decisions, not FBI agents. The reason is not simply one of ego. Prosecutors are generally much better positioned — and are trained — to assess the relevant legal considerations, including, most obviously, what constitutes “admissible evidence” and whether the government can “probably” obtain a conviction at trial. When I was a federal prosecutor, I had the good fortune of working with some outstanding FBI agents, but virtually every prosecutor will, at some point, have had to explain to some case agents that there was not, in fact, enough evidence to charge a case despite what they thought; that they needed to obtain more evidence if prosecutors were going to seek an indictment; or, perhaps in the extreme, that they needed to close the investigation despite their best efforts to develop a prosecutable case.

The other issue that was virtually absent from the Post’s story was any consideration of how the sorts of allegations apparently at issue in the Biden investigation are resolved in other federal criminal investigations. Tax evasion cases are notoriously tricky because they usually require a heightened level of criminal intent — that the defendant actually knew that what he was doing was illegal, as opposed to simply engaging in unseemly but legal accounting shenanigans. This can be difficult if there were lawyers or accountants involved, which is one reason why even egregious tax evasion cases often reach seemingly baffling conclusions — like when, during the Trump administration, the Justice Department declined to prosecute a billionaire private equity CEO who resolved the investigation by agreeing to pay nearly $140 million in taxes and penalties.

The same issue applies to the potential false statement charge against Biden that FBI agents reportedly identified. When I was just starting as a prosecutor and worked on low-level gun cases in the Eastern District of Virginia, we focused pretty much exclusively on just one type of case — when the defendant was a so-called straw purchaser who had lied on the ATF’s form about the fact that he was buying the gun on behalf of a convicted felon who would otherwise have been unable to lawfully purchase it himself.

Biden has acknowledged that he was using drugs at the time of the purchase, but even so, it is far from clear from the reported facts that Biden would be prosecuted for this if he were not Joe Biden’s son. Among other things, he affirmatively admitted his drug use, has evidently been cooperating with the department’s investigation and also has no criminal history. Another reason is that many members of the public — and I suspect this applies to a lot of the people clamoring for Biden’s prosecution — would probably not want the Justice Department aggressively investigating and prosecuting every gun purchaser who might be using illegal drugs in private. This does not necessarily mean that there would — or should — be no consequences, but for a first-time offender on these facts, there would be credible arguments in favor of a declination (no charges filed), a non-prosecution agreement, a deferred prosecution agreement or a plea agreement with no recommended term of incarceration from prosecutors.

As for Trump, it is also not the case that the Justice Department will prosecute Trump simply because they have compiled evidence sufficient to convict him at trial based, for instance, on his apparent mishandling of sensitive government documents. The actual contents of the documents that Trump retained could weigh very heavily in this analysis even though we — the public — currently know virtually nothing about what is actually in them beyond the classification designations. They include documents marked at the highest level of classification — a very bad fact for Trump — but if, hypothetically, the Justice Department were to conclude that Trump took a bunch of scattered bits of classified information that are practically useless to third parties in isolation, that might weigh against charging him.

Another consideration that specialists in this area of prosecution have identified is whether the DOJ could reveal the contents of the documents in a court case without significantly harming national security. Still another set of relevant discretionary factors would be those that former FBI Director James Comey identified when he declined to recommend charges against Hillary Clinton. At the time, Comey explained that earlier prosecutions concerning the “mishandling or removal of classified information” involved “some combination of” several factors. They do not necessarily favor Trump — among other things, Comey identified “efforts to obstruct justice” as an aggravating factor — but the Justice Department is likely to look very closely at comparable cases to ensure that any resolution of the Trump investigation is consistent with the government’s approach to other cases, including the Clinton investigation and others that have not been extensively aired in public.

Many people have presented the situation confronting the Justice Department more simply — as a question of whether the Justice Department has sufficient evidence to indict Trump to convict him during a trial — in part based on public comments by Garland, but they are less straightforward than people are inclined to think. Last week provided a fairly representative example in the form of a lengthy story from The Atlantic that argued that Garland is likely to indict Trump based, among other things, on Garland’s “belief in the rule of law.”

I could go on about what “the rule of law” actually means as a legal or technical matter — and I have — but let’s focus on Garland’s approach, which he has described nearly verbatim in a series of speeches and remarks since taking office. “The essence of the rule of law is that like cases are treated alike,” Garland said when he accepted Joe Biden’s nomination. “That there not be one rule for Democrats, and another for Republicans, one rule for friends, another for foes, one rule for the powerful, another for the powerless.”

One interpretation of these comments is that no one is above the law, and that if you commit a crime, you should be prosecuted. There is, however, another way of reading Garland’s construction, and that is that the law should treat people equally irrespective of their personal status — race, gender, wealth, political affiliation and so forth. That could mean equally harshly or equally generously depending on the context.

Ultimately, the Justice Department could end up charging Trump, Biden, both of them, or neither of them. Yes, I am deliberately withholding my own predictions from this piece. But whatever the result, the department’s decisions are likely to be far more complicated than you might think.

Fair analysis.

Seems to me that there's a pretty clear rationale for not indicting Biden, given the contrition. And if any taxes weren't paid as they should have, that could be resolved with payment. Worst case a probation plea.

With Trump, however, the arguments run counter to one another. One scenario is that the documents taken weren't actually all that sensitive, despite their classification level, the other is that they're too sensitive to actually disclose that to the court...well, that's a conundrum, given that the odds are much greater that it's the latter. The crime is too egregious to prosecute surely can't be the answer. And the sheer volume of the abuse is nearly unparalleled with the exception perhaps of Wikileaks stuff or full scale espionage on behalf of a foreign power. And, as pointed out, Trump's clear intent to obstruct works against any notion of contrition.

Gonna be really hard to not prosecute Trump, seems to me.

But Khardori is obviously correct that it's more complicated than what pundits might say...and us yokels might expect.

[Farfromgeneva]

https://www.politico.com/news/magazine/ ... s-00062329

The Real Reason Trump and Hunter Biden Might Not Get Indicted
Prosecutors aren’t robots. They have wide discretion when it comes to deciding whether to indict someone.

10/19/2022 04:30 AM EDT

Ankush Khardori, an attorney and former federal prosecutor, is a POLITICO Magazine contributing editor.

These are boom times for the country’s armchair prosecutors. Every day seems to bring some fresh new possibility or development in a high-profile criminal investigation, along with the opportunity to speculate about whether a major public figure will wind up in prison. Most of the time these days, we’re talking about Donald Trump, but of course the current president’s son, Hunter Biden, is also under federal criminal investigation, and that has generated similar questions about how that investigation will be resolved.

Much of this commentary, however, has relied on a mechanistic account of how federal prosecutors operate in complex cases: an assumption that if there is sufficient evidence of a crime, then it will, or at least should be, prosecuted. That’s incomplete at best and misleading at worst. The result has been a widespread over-simplification of the questions that Attorney General Merrick Garland and the prosecutors working on these investigations will need to confront — and the distinct possibility that, one way or another, many people will be confused or disappointed if their preferred target is not ultimately indicted.

It is worth taking a step back and understanding the decision-making framework that is supposed to govern whether the Justice Department seeks an indictment of someone. The department has a set of policies that govern such “charging decisions,” but they provide prosecutors with discretion in determining whether to criminally charge someone, and in the Trump and Biden cases, that discretionary element could be crucial.

Generally speaking, there are two prongs to this internal charging analysis under Justice Department policy — one that is legal and one that is prudential — and both must be satisfied.

First, prosecutors need to determine that they would actually be able to convict the potential defendant at a trial. Justice Department policy explains that prosecutors “should commence or recommend federal prosecution” if they believe that they can “probably” get a conviction at trial based on the “admissible evidence.” Put differently, they must believe that they can actually convince a jury to unanimously conclude that the defendant committed each element of the relevant criminal offense beyond a reasonable doubt, notwithstanding the possible defenses at trial, which prosecutors also take into account when making their decision. The core of this exercise is a rigorous analysis of the admissible evidence under specific federal criminal statutes and the case law governing those statues.

Second, in addition to the legal analysis, prosecutors also need to consider a host of discretionary factors, including some that might weigh against charging either Trump or Hunter Biden. In particular, prosecutors must consider whether “(1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.” The Justice Department identifies nine different subsidiary considerations that might weigh for or against a finding that a prosecution would serve a “substantial federal interest.” The list — which is not exhaustive — includes the seriousness of the offense, the deterrent effect of a prosecution, the person’s “culpability in connection with the offense,” his criminal history, his “personal circumstances,” and the “probable sentence or other consequences if the person is convicted.”

Ordinarily, federal prosecutors do not need to give these much thought. In the standard case — which tends to involve illegal immigration, guns or drugs — these considerations are either inconsequential or trivial, both because the public expects certain types of cases to be federally prosecuted and because prosecutors have a significant body of experience and past practice to guide their charging decisions.

Things are not so simple, however, when the underlying conduct is either relatively unusual or concerns a subject in which prosecutors tend to be more flexible in their approach to criminal charges.

A recent report from the Washington Post about the Hunter Biden investigation illustrated this problem well, if somewhat obliquely. The story reported that “[f]ederal agents” investigating Biden “have gathered what they believe is sufficient evidence to charge him with tax crimes and a false statement related to a gun purchase” in October 2018, when he allegedly lied on an ATF form that asks whether the purchaser is a drug user.

This was an odd story, for a couple of reasons. For one thing, as the article noted in passing, it is up to Justice Department prosecutors to make charging decisions, not FBI agents. The reason is not simply one of ego. Prosecutors are generally much better positioned — and are trained — to assess the relevant legal considerations, including, most obviously, what constitutes “admissible evidence” and whether the government can “probably” obtain a conviction at trial. When I was a federal prosecutor, I had the good fortune of working with some outstanding FBI agents, but virtually every prosecutor will, at some point, have had to explain to some case agents that there was not, in fact, enough evidence to charge a case despite what they thought; that they needed to obtain more evidence if prosecutors were going to seek an indictment; or, perhaps in the extreme, that they needed to close the investigation despite their best efforts to develop a prosecutable case.

The other issue that was virtually absent from the Post’s story was any consideration of how the sorts of allegations apparently at issue in the Biden investigation are resolved in other federal criminal investigations. Tax evasion cases are notoriously tricky because they usually require a heightened level of criminal intent — that the defendant actually knew that what he was doing was illegal, as opposed to simply engaging in unseemly but legal accounting shenanigans. This can be difficult if there were lawyers or accountants involved, which is one reason why even egregious tax evasion cases often reach seemingly baffling conclusions — like when, during the Trump administration, the Justice Department declined to prosecute a billionaire private equity CEO who resolved the investigation by agreeing to pay nearly $140 million in taxes and penalties.

The same issue applies to the potential false statement charge against Biden that FBI agents reportedly identified. When I was just starting as a prosecutor and worked on low-level gun cases in the Eastern District of Virginia, we focused pretty much exclusively on just one type of case — when the defendant was a so-called straw purchaser who had lied on the ATF’s form about the fact that he was buying the gun on behalf of a convicted felon who would otherwise have been unable to lawfully purchase it himself.

Biden has acknowledged that he was using drugs at the time of the purchase, but even so, it is far from clear from the reported facts that Biden would be prosecuted for this if he were not Joe Biden’s son. Among other things, he affirmatively admitted his drug use, has evidently been cooperating with the department’s investigation and also has no criminal history. Another reason is that many members of the public — and I suspect this applies to a lot of the people clamoring for Biden’s prosecution — would probably not want the Justice Department aggressively investigating and prosecuting every gun purchaser who might be using illegal drugs in private. This does not necessarily mean that there would — or should — be no consequences, but for a first-time offender on these facts, there would be credible arguments in favor of a declination (no charges filed), a non-prosecution agreement, a deferred prosecution agreement or a plea agreement with no recommended term of incarceration from prosecutors.

As for Trump, it is also not the case that the Justice Department will prosecute Trump simply because they have compiled evidence sufficient to convict him at trial based, for instance, on his apparent mishandling of sensitive government documents. The actual contents of the documents that Trump retained could weigh very heavily in this analysis even though we — the public — currently know virtually nothing about what is actually in them beyond the classification designations. They include documents marked at the highest level of classification — a very bad fact for Trump — but if, hypothetically, the Justice Department were to conclude that Trump took a bunch of scattered bits of classified information that are practically useless to third parties in isolation, that might weigh against charging him.

Another consideration that specialists in this area of prosecution have identified is whether the DOJ could reveal the contents of the documents in a court case without significantly harming national security. Still another set of relevant discretionary factors would be those that former FBI Director James Comey identified when he declined to recommend charges against Hillary Clinton. At the time, Comey explained that earlier prosecutions concerning the “mishandling or removal of classified information” involved “some combination of” several factors. They do not necessarily favor Trump — among other things, Comey identified “efforts to obstruct justice” as an aggravating factor — but the Justice Department is likely to look very closely at comparable cases to ensure that any resolution of the Trump investigation is consistent with the government’s approach to other cases, including the Clinton investigation and others that have not been extensively aired in public.

Many people have presented the situation confronting the Justice Department more simply — as a question of whether the Justice Department has sufficient evidence to indict Trump to convict him during a trial — in part based on public comments by Garland, but they are less straightforward than people are inclined to think. Last week provided a fairly representative example in the form of a lengthy story from The Atlantic that argued that Garland is likely to indict Trump based, among other things, on Garland’s “belief in the rule of law.”

I could go on about what “the rule of law” actually means as a legal or technical matter — and I have — but let’s focus on Garland’s approach, which he has described nearly verbatim in a series of speeches and remarks since taking office. “The essence of the rule of law is that like cases are treated alike,” Garland said when he accepted Joe Biden’s nomination. “That there not be one rule for Democrats, and another for Republicans, one rule for friends, another for foes, one rule for the powerful, another for the powerless.”

One interpretation of these comments is that no one is above the law, and that if you commit a crime, you should be prosecuted. There is, however, another way of reading Garland’s construction, and that is that the law should treat people equally irrespective of their personal status — race, gender, wealth, political affiliation and so forth. That could mean equally harshly or equally generously depending on the context.

Ultimately, the Justice Department could end up charging Trump, Biden, both of them, or neither of them. Yes, I am deliberately withholding my own predictions from this piece. But whatever the result, the department’s decisions are likely to be far more complicated than you might think.

Fair analysis.

Seems to me that there's a pretty clear rationale for not indicting Biden, given the contrition. And if any taxes weren't paid as they should have, that could be resolved with payment. Worst case a probation plea.

With Trump, however, the arguments run counter to one another. One scenario is that the documents taken weren't actually all that sensitive, despite their classification level, the other is that they're too sensitive to actually disclose that to the court...well, that's a conundrum, given that the odds are much greater that it's the latter. The crime is too egregious to prosecute surely can't be the answer. And the sheer volume of the abuse is nearly unparalleled with the exception perhaps of Wikileaks stuff or full scale espionage on behalf of a foreign power. And, as pointed out, Trump's clear intent to obstruct works against any notion of contrition.

Gonna be really hard to not prosecute Trump, seems to me.

But Khardori is obviously correct that it's more complicated than what pundits might say...and us yokels might expect.

When you have the former potus straight up lying and telling them they have everything and they look at video from MSR a lago within an hour of that and see it’s a clear as day lie and that it was also clear from video evidence supported by corroborating testimony that they were instructed to hide materials and make them hard for the govt to find I don’t see how cannot prosecute trump.

If you cannot protect citizens by demonstrating that no one is above the law theme we have no law. Win or lose that means you have to prosecute/. Even though we know idiot MaGA clowns like Hawley, cruz and freshly back on the monster dating scene MTG or whatever her name will be going forward will abuse it and screw things up worse for all citizens.

[MDlaxfan76]

I hope it's clear that's my conclusion as well...given the info we know publicly.
Very tough to imagine how/why the DOJ doesn't ultimately pull the trigger on Trump for at least some federal crimes.

I think it's interesting that some of the crimes (not the documents) could be state as well as federal crimes. Conviction on the state level can't be pardoned by a future GOP President, nor any President for that matter.

[NattyBohChamps04]

Of course the insanely idiotic and half-witted thing is comparing Hunter Biden to Donald Trump. Gotta be called out and stomped on.

Comparing allegations of financial cronyism to getting caught red-handed stealing tons of highly classified as well as inciting a coup to overthrow the elected leader of the United States. That's not including impeachment and other shadiness around Ukraine by Trump & Co. That's not including the hundreds of millions and billions in financial cronyism by Trump's kids & in-laws that make Hunter's accusations look stupidly simple.

You'd have to be mentally damaged or morally bankrupt to try and equate the two in federal investigations. Sad that people think they're remotely similar.

Prosecute when appropriate, sure, but lumping them together is stupid. Like, really stupid.

[Farfromgeneva]

Of course the insanely idiotic and half-witted thing is comparing Hunter Biden to Donald Trump. Gotta be called out and stomped on.

Comparing allegations of financial cronyism to getting caught red-handed stealing tons of highly classified as well as inciting a coup to overthrow the elected leader of the United States. That's not including impeachment and other shadiness around Ukraine by Trump & Co. That's not including the hundreds of millions and billions in financial cronyism by Trump's kids & in-laws that make Hunter's accusations look stupidly simple.

You'd have to be mentally damaged or morally bankrupt to try and equate the two in federal investigations. Sad that people think they're remotely similar.

Prosecute when appropriate, sure, but lumping them together is stupid. Like, really stupid.

It’s straw man to put the focus on another name

[Farfromgeneva]

Was talking to a buddy last night I worked at a large firm in NY with back in the day but in different teams. Recalled they had Trump come in one time around 2004 because then entire floor/unit of like 400 employees were mocking him. He was reminding me how much his boss held the guy out as a joke and they were laughing at him after he left.

Anytime who ever believed Trump is a good businessman should stay home and not vote because you just are too uninformed. Give your votes to immigrants and felons who value the vote more than you do.

[CU88]

The time to act has not passed but it is getting late. Being concerned about looking political is being political. The Jan. 6 Committee has done its job. Now DOJ needs to do its job before it’s too late to solve this Constitutional crisis.

https://www.thedailybeast.com/jan-6-com ... ref=author

[jhu72]

https://www.politico.com/news/magazine/ ... s-00062329

The Real Reason Trump and Hunter Biden Might Not Get Indicted
Prosecutors aren’t robots. They have wide discretion when it comes to deciding whether to indict someone.

10/19/2022 04:30 AM EDT

Ankush Khardori, an attorney and former federal prosecutor, is a POLITICO Magazine contributing editor.

These are boom times for the country’s armchair prosecutors. Every day seems to bring some fresh new possibility or development in a high-profile criminal investigation, along with the opportunity to speculate about whether a major public figure will wind up in prison. Most of the time these days, we’re talking about Donald Trump, but of course the current president’s son, Hunter Biden, is also under federal criminal investigation, and that has generated similar questions about how that investigation will be resolved.

Much of this commentary, however, has relied on a mechanistic account of how federal prosecutors operate in complex cases: an assumption that if there is sufficient evidence of a crime, then it will, or at least should be, prosecuted. That’s incomplete at best and misleading at worst. The result has been a widespread over-simplification of the questions that Attorney General Merrick Garland and the prosecutors working on these investigations will need to confront — and the distinct possibility that, one way or another, many people will be confused or disappointed if their preferred target is not ultimately indicted.

It is worth taking a step back and understanding the decision-making framework that is supposed to govern whether the Justice Department seeks an indictment of someone. The department has a set of policies that govern such “charging decisions,” but they provide prosecutors with discretion in determining whether to criminally charge someone, and in the Trump and Biden cases, that discretionary element could be crucial.

Generally speaking, there are two prongs to this internal charging analysis under Justice Department policy — one that is legal and one that is prudential — and both must be satisfied.

First, prosecutors need to determine that they would actually be able to convict the potential defendant at a trial. Justice Department policy explains that prosecutors “should commence or recommend federal prosecution” if they believe that they can “probably” get a conviction at trial based on the “admissible evidence.” Put differently, they must believe that they can actually convince a jury to unanimously conclude that the defendant committed each element of the relevant criminal offense beyond a reasonable doubt, notwithstanding the possible defenses at trial, which prosecutors also take into account when making their decision. The core of this exercise is a rigorous analysis of the admissible evidence under specific federal criminal statutes and the case law governing those statues.

Second, in addition to the legal analysis, prosecutors also need to consider a host of discretionary factors, including some that might weigh against charging either Trump or Hunter Biden. In particular, prosecutors must consider whether “(1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.” The Justice Department identifies nine different subsidiary considerations that might weigh for or against a finding that a prosecution would serve a “substantial federal interest.” The list — which is not exhaustive — includes the seriousness of the offense, the deterrent effect of a prosecution, the person’s “culpability in connection with the offense,” his criminal history, his “personal circumstances,” and the “probable sentence or other consequences if the person is convicted.”

Ordinarily, federal prosecutors do not need to give these much thought. In the standard case — which tends to involve illegal immigration, guns or drugs — these considerations are either inconsequential or trivial, both because the public expects certain types of cases to be federally prosecuted and because prosecutors have a significant body of experience and past practice to guide their charging decisions.

Things are not so simple, however, when the underlying conduct is either relatively unusual or concerns a subject in which prosecutors tend to be more flexible in their approach to criminal charges.

A recent report from the Washington Post about the Hunter Biden investigation illustrated this problem well, if somewhat obliquely. The story reported that “[f]ederal agents” investigating Biden “have gathered what they believe is sufficient evidence to charge him with tax crimes and a false statement related to a gun purchase” in October 2018, when he allegedly lied on an ATF form that asks whether the purchaser is a drug user.

This was an odd story, for a couple of reasons. For one thing, as the article noted in passing, it is up to Justice Department prosecutors to make charging decisions, not FBI agents. The reason is not simply one of ego. Prosecutors are generally much better positioned — and are trained — to assess the relevant legal considerations, including, most obviously, what constitutes “admissible evidence” and whether the government can “probably” obtain a conviction at trial. When I was a federal prosecutor, I had the good fortune of working with some outstanding FBI agents, but virtually every prosecutor will, at some point, have had to explain to some case agents that there was not, in fact, enough evidence to charge a case despite what they thought; that they needed to obtain more evidence if prosecutors were going to seek an indictment; or, perhaps in the extreme, that they needed to close the investigation despite their best efforts to develop a prosecutable case.

The other issue that was virtually absent from the Post’s story was any consideration of how the sorts of allegations apparently at issue in the Biden investigation are resolved in other federal criminal investigations. Tax evasion cases are notoriously tricky because they usually require a heightened level of criminal intent — that the defendant actually knew that what he was doing was illegal, as opposed to simply engaging in unseemly but legal accounting shenanigans. This can be difficult if there were lawyers or accountants involved, which is one reason why even egregious tax evasion cases often reach seemingly baffling conclusions — like when, during the Trump administration, the Justice Department declined to prosecute a billionaire private equity CEO who resolved the investigation by agreeing to pay nearly $140 million in taxes and penalties.

The same issue applies to the potential false statement charge against Biden that FBI agents reportedly identified. When I was just starting as a prosecutor and worked on low-level gun cases in the Eastern District of Virginia, we focused pretty much exclusively on just one type of case — when the defendant was a so-called straw purchaser who had lied on the ATF’s form about the fact that he was buying the gun on behalf of a convicted felon who would otherwise have been unable to lawfully purchase it himself.

Biden has acknowledged that he was using drugs at the time of the purchase, but even so, it is far from clear from the reported facts that Biden would be prosecuted for this if he were not Joe Biden’s son. Among other things, he affirmatively admitted his drug use, has evidently been cooperating with the department’s investigation and also has no criminal history. Another reason is that many members of the public — and I suspect this applies to a lot of the people clamoring for Biden’s prosecution — would probably not want the Justice Department aggressively investigating and prosecuting every gun purchaser who might be using illegal drugs in private. This does not necessarily mean that there would — or should — be no consequences, but for a first-time offender on these facts, there would be credible arguments in favor of a declination (no charges filed), a non-prosecution agreement, a deferred prosecution agreement or a plea agreement with no recommended term of incarceration from prosecutors.

As for Trump, it is also not the case that the Justice Department will prosecute Trump simply because they have compiled evidence sufficient to convict him at trial based, for instance, on his apparent mishandling of sensitive government documents. The actual contents of the documents that Trump retained could weigh very heavily in this analysis even though we — the public — currently know virtually nothing about what is actually in them beyond the classification designations. They include documents marked at the highest level of classification — a very bad fact for Trump — but if, hypothetically, the Justice Department were to conclude that Trump took a bunch of scattered bits of classified information that are practically useless to third parties in isolation, that might weigh against charging him.

Another consideration that specialists in this area of prosecution have identified is whether the DOJ could reveal the contents of the documents in a court case without significantly harming national security. Still another set of relevant discretionary factors would be those that former FBI Director James Comey identified when he declined to recommend charges against Hillary Clinton. At the time, Comey explained that earlier prosecutions concerning the “mishandling or removal of classified information” involved “some combination of” several factors. They do not necessarily favor Trump — among other things, Comey identified “efforts to obstruct justice” as an aggravating factor — but the Justice Department is likely to look very closely at comparable cases to ensure that any resolution of the Trump investigation is consistent with the government’s approach to other cases, including the Clinton investigation and others that have not been extensively aired in public.

Many people have presented the situation confronting the Justice Department more simply — as a question of whether the Justice Department has sufficient evidence to indict Trump to convict him during a trial — in part based on public comments by Garland, but they are less straightforward than people are inclined to think. Last week provided a fairly representative example in the form of a lengthy story from The Atlantic that argued that Garland is likely to indict Trump based, among other things, on Garland’s “belief in the rule of law.”

I could go on about what “the rule of law” actually means as a legal or technical matter — and I have — but let’s focus on Garland’s approach, which he has described nearly verbatim in a series of speeches and remarks since taking office. “The essence of the rule of law is that like cases are treated alike,” Garland said when he accepted Joe Biden’s nomination. “That there not be one rule for Democrats, and another for Republicans, one rule for friends, another for foes, one rule for the powerful, another for the powerless.”

One interpretation of these comments is that no one is above the law, and that if you commit a crime, you should be prosecuted. There is, however, another way of reading Garland’s construction, and that is that the law should treat people equally irrespective of their personal status — race, gender, wealth, political affiliation and so forth. That could mean equally harshly or equally generously depending on the context.

Ultimately, the Justice Department could end up charging Trump, Biden, both of them, or neither of them. Yes, I am deliberately withholding my own predictions from this piece. But whatever the result, the department’s decisions are likely to be far more complicated than you might think.

Fair analysis.

Seems to me that there's a pretty clear rationale for not indicting Biden, given the contrition. And if any taxes weren't paid as they should have, that could be resolved with payment. Worst case a probation plea.

With Trump, however, the arguments run counter to one another. One scenario is that the documents taken weren't actually all that sensitive, despite their classification level, the other is that they're too sensitive to actually disclose that to the court...well, that's a conundrum, given that the odds are much greater that it's the latter. The crime is too egregious to prosecute surely can't be the answer. And the sheer volume of the abuse is nearly unparalleled with the exception perhaps of Wikileaks stuff or full scale espionage on behalf of a foreign power. And, as pointed out, Trump's clear intent to obstruct works against any notion of contrition.

Gonna be really hard to not prosecute Trump, seems to me.

But Khardori is obviously correct that it's more complicated than what pundits might say...and us yokels might expect.

When you have the former potus straight up lying and telling them they have everything and they look at video from MSR a lago within an hour of that and see it’s a clear as day lie and that it was also clear from video evidence supported by corroborating testimony that they were instructed to hide materials and make them hard for the govt to find I don’t see how cannot prosecute trump.

If you cannot protect citizens by demonstrating that no one is above the law theme we have no law. Win or lose that means you have to prosecute/. Even though we know idiot MaGA clowns like Hawley, cruz and freshly back on the monster dating scene MTG or whatever her name will be going forward will abuse it and screw things up worse for all citizens.

... I hear this argument more and more. It is clearly a correct argument. If Donald skates, the country is done. It will totally demoralize the heart of this country. Those who believe in the country.

Those who think they believe in the country (or are protecting the country ) and support Trump and/or his supporters, need to rethink their position, their support.

[Farfromgeneva]

https://www.politico.com/news/magazine/ ... s-00062329

The Real Reason Trump and Hunter Biden Might Not Get Indicted
Prosecutors aren’t robots. They have wide discretion when it comes to deciding whether to indict someone.

10/19/2022 04:30 AM EDT

Ankush Khardori, an attorney and former federal prosecutor, is a POLITICO Magazine contributing editor.

These are boom times for the country’s armchair prosecutors. Every day seems to bring some fresh new possibility or development in a high-profile criminal investigation, along with the opportunity to speculate about whether a major public figure will wind up in prison. Most of the time these days, we’re talking about Donald Trump, but of course the current president’s son, Hunter Biden, is also under federal criminal investigation, and that has generated similar questions about how that investigation will be resolved.

Much of this commentary, however, has relied on a mechanistic account of how federal prosecutors operate in complex cases: an assumption that if there is sufficient evidence of a crime, then it will, or at least should be, prosecuted. That’s incomplete at best and misleading at worst. The result has been a widespread over-simplification of the questions that Attorney General Merrick Garland and the prosecutors working on these investigations will need to confront — and the distinct possibility that, one way or another, many people will be confused or disappointed if their preferred target is not ultimately indicted.

It is worth taking a step back and understanding the decision-making framework that is supposed to govern whether the Justice Department seeks an indictment of someone. The department has a set of policies that govern such “charging decisions,” but they provide prosecutors with discretion in determining whether to criminally charge someone, and in the Trump and Biden cases, that discretionary element could be crucial.

Generally speaking, there are two prongs to this internal charging analysis under Justice Department policy — one that is legal and one that is prudential — and both must be satisfied.

First, prosecutors need to determine that they would actually be able to convict the potential defendant at a trial. Justice Department policy explains that prosecutors “should commence or recommend federal prosecution” if they believe that they can “probably” get a conviction at trial based on the “admissible evidence.” Put differently, they must believe that they can actually convince a jury to unanimously conclude that the defendant committed each element of the relevant criminal offense beyond a reasonable doubt, notwithstanding the possible defenses at trial, which prosecutors also take into account when making their decision. The core of this exercise is a rigorous analysis of the admissible evidence under specific federal criminal statutes and the case law governing those statues.

Second, in addition to the legal analysis, prosecutors also need to consider a host of discretionary factors, including some that might weigh against charging either Trump or Hunter Biden. In particular, prosecutors must consider whether “(1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.” The Justice Department identifies nine different subsidiary considerations that might weigh for or against a finding that a prosecution would serve a “substantial federal interest.” The list — which is not exhaustive — includes the seriousness of the offense, the deterrent effect of a prosecution, the person’s “culpability in connection with the offense,” his criminal history, his “personal circumstances,” and the “probable sentence or other consequences if the person is convicted.”

Ordinarily, federal prosecutors do not need to give these much thought. In the standard case — which tends to involve illegal immigration, guns or drugs — these considerations are either inconsequential or trivial, both because the public expects certain types of cases to be federally prosecuted and because prosecutors have a significant body of experience and past practice to guide their charging decisions.

Things are not so simple, however, when the underlying conduct is either relatively unusual or concerns a subject in which prosecutors tend to be more flexible in their approach to criminal charges.

A recent report from the Washington Post about the Hunter Biden investigation illustrated this problem well, if somewhat obliquely. The story reported that “[f]ederal agents” investigating Biden “have gathered what they believe is sufficient evidence to charge him with tax crimes and a false statement related to a gun purchase” in October 2018, when he allegedly lied on an ATF form that asks whether the purchaser is a drug user.

This was an odd story, for a couple of reasons. For one thing, as the article noted in passing, it is up to Justice Department prosecutors to make charging decisions, not FBI agents. The reason is not simply one of ego. Prosecutors are generally much better positioned — and are trained — to assess the relevant legal considerations, including, most obviously, what constitutes “admissible evidence” and whether the government can “probably” obtain a conviction at trial. When I was a federal prosecutor, I had the good fortune of working with some outstanding FBI agents, but virtually every prosecutor will, at some point, have had to explain to some case agents that there was not, in fact, enough evidence to charge a case despite what they thought; that they needed to obtain more evidence if prosecutors were going to seek an indictment; or, perhaps in the extreme, that they needed to close the investigation despite their best efforts to develop a prosecutable case.

The other issue that was virtually absent from the Post’s story was any consideration of how the sorts of allegations apparently at issue in the Biden investigation are resolved in other federal criminal investigations. Tax evasion cases are notoriously tricky because they usually require a heightened level of criminal intent — that the defendant actually knew that what he was doing was illegal, as opposed to simply engaging in unseemly but legal accounting shenanigans. This can be difficult if there were lawyers or accountants involved, which is one reason why even egregious tax evasion cases often reach seemingly baffling conclusions — like when, during the Trump administration, the Justice Department declined to prosecute a billionaire private equity CEO who resolved the investigation by agreeing to pay nearly $140 million in taxes and penalties.

The same issue applies to the potential false statement charge against Biden that FBI agents reportedly identified. When I was just starting as a prosecutor and worked on low-level gun cases in the Eastern District of Virginia, we focused pretty much exclusively on just one type of case — when the defendant was a so-called straw purchaser who had lied on the ATF’s form about the fact that he was buying the gun on behalf of a convicted felon who would otherwise have been unable to lawfully purchase it himself.

Biden has acknowledged that he was using drugs at the time of the purchase, but even so, it is far from clear from the reported facts that Biden would be prosecuted for this if he were not Joe Biden’s son. Among other things, he affirmatively admitted his drug use, has evidently been cooperating with the department’s investigation and also has no criminal history. Another reason is that many members of the public — and I suspect this applies to a lot of the people clamoring for Biden’s prosecution — would probably not want the Justice Department aggressively investigating and prosecuting every gun purchaser who might be using illegal drugs in private. This does not necessarily mean that there would — or should — be no consequences, but for a first-time offender on these facts, there would be credible arguments in favor of a declination (no charges filed), a non-prosecution agreement, a deferred prosecution agreement or a plea agreement with no recommended term of incarceration from prosecutors.

As for Trump, it is also not the case that the Justice Department will prosecute Trump simply because they have compiled evidence sufficient to convict him at trial based, for instance, on his apparent mishandling of sensitive government documents. The actual contents of the documents that Trump retained could weigh very heavily in this analysis even though we — the public — currently know virtually nothing about what is actually in them beyond the classification designations. They include documents marked at the highest level of classification — a very bad fact for Trump — but if, hypothetically, the Justice Department were to conclude that Trump took a bunch of scattered bits of classified information that are practically useless to third parties in isolation, that might weigh against charging him.

Another consideration that specialists in this area of prosecution have identified is whether the DOJ could reveal the contents of the documents in a court case without significantly harming national security. Still another set of relevant discretionary factors would be those that former FBI Director James Comey identified when he declined to recommend charges against Hillary Clinton. At the time, Comey explained that earlier prosecutions concerning the “mishandling or removal of classified information” involved “some combination of” several factors. They do not necessarily favor Trump — among other things, Comey identified “efforts to obstruct justice” as an aggravating factor — but the Justice Department is likely to look very closely at comparable cases to ensure that any resolution of the Trump investigation is consistent with the government’s approach to other cases, including the Clinton investigation and others that have not been extensively aired in public.

Many people have presented the situation confronting the Justice Department more simply — as a question of whether the Justice Department has sufficient evidence to indict Trump to convict him during a trial — in part based on public comments by Garland, but they are less straightforward than people are inclined to think. Last week provided a fairly representative example in the form of a lengthy story from The Atlantic that argued that Garland is likely to indict Trump based, among other things, on Garland’s “belief in the rule of law.”

I could go on about what “the rule of law” actually means as a legal or technical matter — and I have — but let’s focus on Garland’s approach, which he has described nearly verbatim in a series of speeches and remarks since taking office. “The essence of the rule of law is that like cases are treated alike,” Garland said when he accepted Joe Biden’s nomination. “That there not be one rule for Democrats, and another for Republicans, one rule for friends, another for foes, one rule for the powerful, another for the powerless.”

One interpretation of these comments is that no one is above the law, and that if you commit a crime, you should be prosecuted. There is, however, another way of reading Garland’s construction, and that is that the law should treat people equally irrespective of their personal status — race, gender, wealth, political affiliation and so forth. That could mean equally harshly or equally generously depending on the context.

Ultimately, the Justice Department could end up charging Trump, Biden, both of them, or neither of them. Yes, I am deliberately withholding my own predictions from this piece. But whatever the result, the department’s decisions are likely to be far more complicated than you might think.

Fair analysis.

Seems to me that there's a pretty clear rationale for not indicting Biden, given the contrition. And if any taxes weren't paid as they should have, that could be resolved with payment. Worst case a probation plea.

With Trump, however, the arguments run counter to one another. One scenario is that the documents taken weren't actually all that sensitive, despite their classification level, the other is that they're too sensitive to actually disclose that to the court...well, that's a conundrum, given that the odds are much greater that it's the latter. The crime is too egregious to prosecute surely can't be the answer. And the sheer volume of the abuse is nearly unparalleled with the exception perhaps of Wikileaks stuff or full scale espionage on behalf of a foreign power. And, as pointed out, Trump's clear intent to obstruct works against any notion of contrition.

Gonna be really hard to not prosecute Trump, seems to me.

But Khardori is obviously correct that it's more complicated than what pundits might say...and us yokels might expect.

When you have the former potus straight up lying and telling them they have everything and they look at video from MSR a lago within an hour of that and see it’s a clear as day lie and that it was also clear from video evidence supported by corroborating testimony that they were instructed to hide materials and make them hard for the govt to find I don’t see how cannot prosecute trump.

If you cannot protect citizens by demonstrating that no one is above the law theme we have no law. Win or lose that means you have to prosecute/. Even though we know idiot MaGA clowns like Hawley, cruz and freshly back on the monster dating scene MTG or whatever her name will be going forward will abuse it and screw things up worse for all citizens.

... I hear this argument more and more. It is clearly a correct argument. If Donald skates, the country is done. It will totally demoralize the heart of this country. Those who believe in the country.

Those who think they believe in the country (or are protecting the country ) and support Trump and/or his supporters, need to rethink their position, their support.

I’m terrified what some of these self serving scumbags will do in the future but doesn’t matter. We need to live in the present.

[jhu72]

How smart can these guys really be?

[Farfromgeneva]

How smart can these guys really be?

Tom Barrack is no innocent. First hand knowledge there.

[Brooklyn]

tRump: King of HATE



https://i.imgur.com/2PrPJlE.jpg



Same clown who carried a Bible in front of a church. Quite an irony there.

[Seacoaster(1)]

A development?

https://www.theguardian.com/us-news/202 ... -documents

"Federal prosecutors examining Donald Trump’s unauthorized retention of highly sensitive government documents at his Mar-a-Lago property will obtain testimony from top adviser Kash Patel after granting him limited immunity from prosecution, according to two sources familiar with the matter.

The immunity – a powerful tool that forces witnesses to testify on the promise that they will not be prosecuted for their statements or information derived from their statements – takes effect on 2 November and signals the importance of his testimony to the criminal investigation.

The justice department’s interest with Patel centers on his claims that the documents found at Mar-a-Lago were declassified, how the documents came to end up at the property, and how Trump’s aides and lawyers responded to requests for their return, the sources said.

The status of the documents is important because if prosecutors can prove that those seized by the FBI in August were not declassified, it could strengthen a potential obstruction case contending that Trump used the claims as an excuse for why he did not return records that had been subpoenaed.

Trump and advisers like Patel have claimed repeatedly since the Mar-a-Lago search that the seized documents were declassified, though no such evidence has emerged and Trump’s lawyers have not repeated the assertions in court filings, where they could face penalties for lying.

But the justice department’s focus on the declassification suggests federal prosecutors consider it relevant to the inquiry into Trump’s retention of documents at the Florida property, as well as whether Patel himself wanted to impede or obstruct the investigation if his claims were false.

As Patel is a close adviser to Trump – he maintains a personal relationship with the former president – who was also appointed as one of his representatives to the National Archives, the justice department is expected to ask Patel about the circumstances behind the documents at Mar-a-Lago.

The Guardian first reported that the justice department was considering granting Patel use immunity on Wednesday morning. The immunity order, confirmed by the Wall Street Journal, was transmitted to Patel’s lawyers hours later.

The push to secure Patel’s testimony intensified after he was summoned earlier this month to testify before a federal grand jury in Washington hearing evidence about Trump’s mishandling of government documents and potential obstruction when he resisted returning certain records.

Patel asserted his fifth amendment right against self-incrimination to an array of questions, the sources said, though the basis for some was not clear; even if the documents were not declassified, making false public statements would probably not be a crime.

In the obstruction investigation examining Trump by the former special counsel Robert Mueller, for instance, prosecutors concluded that the former president’s false statements about his campaign’s ties to Russia could only be considered criminal if he made them to Congress or the FBI.

But after chief US district court judge Beryl Howell in Washington agreed that Patel could justifiably believe he had reason to assert the fifth, the justice department applied for an order giving him limited immunity from prosecution that was granted late last week, the sources said.

Trump has only doubled down in recent weeks on the claim that all of the documents in his possession were declassified, while his office has said Trump issued a standing order that records taken to the White House residence were automatically declassified.

Trump also claimed to Fox News host Sean Hannity, when asked what procedures he used to declassify the documents, that presidents had the authority to declassify documents by the power of thought.

“Different people say different things but as I understand it, if you’re the president of the United States, you can declassify just by saying it’s declassified, even by thinking about it,” Trump told Hannity.

But the justice department’s willingness to grant use immunity to Patel underscores how important they consider his testimony as prosecutors continue to collect evidence against Trump through his current and former aides.

Prosecutors only grant immunity to witnesses as a last resort, especially in high-profile cases, since it makes potentially prosecuting them in the future much more difficult, and the move requires internal approval at the highest levels of the justice department.

The justice department has also pressured Trump’s valet, Walt Nauta, to sit for an additional interview to answer questions about how Trump instructed him to remove boxes from a storage room at Mar-a-Lago where documents marked classified were stashed, one of the sources said.

Nauta has resisted having another interview with prosecutors – on the advice of his lawyer, who also represents Patel – after they indicated they were skeptical of an initial account he gave about moving documents from the storage room and raised the prospect of charging him with obstruction."