Im-Politic: Where Blame is Due

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civil rights, Derek Chauvin, George Floyd, Hennepin County, homicide, Im-Politic, Jr., Justice Department, manslaughter, Martin Luther King, Mike Freeman, Minneapolis, Minneapolis protests, Minneapolis riots, Minnesota, murder, police killings, prosecutors, race relations, vandalism

Two sets of thoughts today about the killing of an unarmed, subdued black male crime suspect by a white Minneapolis police officer, and specifically who s to blame – for starters – for its too often violent aftermath.

>First, muddled thinking is abounding about the different categories of groups and individuals involved in this past week’s upheaval. And the problem centers on those who have acted violently.

It should be, but clearly isn’t, obvious that the arsonists and window-smashers and brick-throwers etc mustn’t simply be divided between locals and outside agitators, or between those whose anger is longstanding and genuine and those who have simply gotten caught up in mass hysteria. For if the typology used even for the violent participants isn’t valid, it’s unlikely that the country’s collective response will be constructive.

In my view, none of the violence is acceptable in the slightest – in the sense that its outbreak or continuation can be safely tolerated by any governmental authority. So I’m not completely with the late Rev. Dr. Martin Luther King Jr’s position that “a riot is the language of the unheard.” I say “completely” because it’s crucial to look at the targets of the violence.

Specifically, rioters who attack police stations and vehicles, or government buildings, or even properties with clearly symbolic importance (e.g., a stock exchange) undoubtedly are assailing a system they consider oppressive, and that they believe prevents the peaceful attainment of their objectives (which could in principle even include bringing on anarchy).

I don’t agree with this view because I don’t accept the underlying analysis. But it’s logical. It’s coherent. And it’s principled. At the same time, it can’t be accepted, because a widespread breakdown of order would threaten essential levels of personal safety and well-being for the vast majority of Americans. Which means that these rioters (and their sympathizers) need to recognize that the authorities are justified in using any legal means needed to stop and/or prevent this violence. In other words, attack this system if you will, but don’t complain when it exercises its right to self-defense.

Rioters who attack other targets – like businesses or other sites without symbolic importance – may be motivated by genuine anger against an oppressive system. But ethically speaking, their actions are even less defensible. The best that can be said of them is that they’ve acted without the simple judgment and self-control that’s also needed for society to function satisfactorily. So that society has a legitimate interest in using any legal means necessary to stop and/or prevent their violence. And their sincerity consequently doesn’t warrant lenient treatment, either.

As for the looters – they’ve clearly lost the moral right to carry a social or racial justice warrior ID card. They’re nothing better than common thieves who deserve common thief treatment from the criminal justice system, and no sympathy whatever from their fellow citizens.

>Second, however strong my conviction that none of this week’s violence is acceptable, I can’t shake the feeling that the Minnesota state authorities made the crucial mistake by failing to indict the police officer in question, Derek Chauvin, much faster.

After all, much of violence was sparked by a belief that, despite the unmistakably incriminating video evidence, the authorities were taking much longer in arresting Chauvin than they would have taken in dealing with non-white suspects (even in more ambiguous circumstances).

And in this instance, they were absolutely right. The lion’s share of the blame here goes to Hennepin County (Minnesota) Attorney Mike Freeman, whose first instinct was to announce that “We are going to investigate it as expeditiously, as thoroughly and completely as justice demands. Sometimes that takes a little time. And we ask people to be patient.”

He continued:

“That that video [of the killing] is graphic and horrific and terrible and no person should do that. But my job in the end is to prove that he violated criminal statute. And there is other evidence that does not support a criminal charge. We need to wade through all of that evidence to come to a meaningful determination and we are doing that to the best of our ability.”

But however reasonable and responsible and even necessarily fair these comments may have sounded, they were conspicuously timid to anyone with any familiarity with the criminal justice system. For there was no intrinsic need – and certainly no need in this case – for Minnesota authorities to conduct the kind of relatively protracted pre-arrest investigation of this killing that Hennepin County Attorney Mike Freeman described in a press conference yesterday.

After all, the video (whose authenticity no one has challenged) shows the action in question and Chauvin’s involvement undeniably. Would Freeman call for a detailed investigation if he saw a security camera recording of an unmasked thief robbing a liquor store?

Sure, there was the question of specifying the charges against Chauvin. Given the above categories of murder and manslaughter (and in some states, but not Minnesota, “negligent homicide”), that’s not a no-brainer. (On Friday, Freeman announced them to be third-degree murder and second-degree manslaughter.)

But not even these decisions are always or even typically based on meticulous examinations of available evidence. Prosecutors enjoy considerable discretion, and it’s common to file a more serious charge in order to create the worst-case certainty of a lesser conviction. In any event, an experienced District Attorney shouldn’t need three days to make up his or her mind. Which means that Freeman’s dithering surely, and needlessly, fed volatile, racially-tinged suspicions of the criminal justice system.

Where more careful investigation may be justified is in the second, and separate, related probe of the Floyd killing that will be conducted by the federal government. Under the U.S. Constitution, most crimes (except for those designated as federal offenses) are dealt with by the states. These include unlawful homicides like the one Chauvin allegedly committed. (Legally speaking a homicide refers to any taking of one person’s life by another person, legally permitted or not.)

The federal government’s Justice Department, however, is responsible for enforcing federal civil rights law, and on Friday, Attorney General William P. Barr ordered an investigation into whether Floyd’s killing warrants prosecution according to those statutes.

In some instances, apparently, these prosecutions can be more difficult to conduct successfully than standard criminal homicide trials. So it wasn’t completely crazy for U.S. Attorney Erica MacDonald to talk about the the need to “methodically continue to gather facts” and compiling “all available information and thoroughly evaluate evidence and information obtained from witnesses.”   

At the same time, the Justice Department’s own guidelines seem to show that meeting this standard shouldn’t be especially challenging.for an indictment and even conviction in Floyd/Chauvin case given the video evidence, and in particular given the lengthy period during which Floyd clearly was in major distress at Chauvin’s hands:

“…the government must prove each of the following elements beyond a reasonable doubt: (1) that the defendant deprived a victim of a right protected by the Constitution or laws of the United States, (2) that the defendant acted willfully, and (3) that the defendant was acting under color of law. A violation …is a felony if one of the following conditions is met: the defendant used, attempted to use, or threatened to use a dangerous weapon, explosive or fire; the victim suffered bodily injury; the defendant’s actions included attempted murder, kidnapping or attempted kidnapping, aggravated sexual abuse or attempted aggravated sexual abuse, or the crime resulted in death. Otherwise, the violation is a misdemeanor.

“Establishing the intent behind a Constitutional violation requires proof beyond a reasonable doubt that the law enforcement officer knew what he/she was doing was wrong and against the law and decided to do it anyway. Therefore, even if the government can prove beyond a reasonable doubt that an individual’s Constitutional right was violated,[the statute] requires that the government prove that the law enforcement officer intended to engage in the unlawful conduct and that he/she did so knowing that it was wrong or unlawful. See Screws v. United States, 325 U.S. 91, 101-107 (1945). Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute.”

So an argument can be made that the Feds were being too scrupulous by half, too.

Law enforcement should never be influenced by politics – much less by fear that unpopular indictments or verdicts will spark civil unrest. That’s a great recipe for mob rule. And as argued above, many of the rioters weren’t going to be appeased even by the swiftest Minneapolis indictments.

But the Justice Department has officially acknowledged the “sensitive nature of the constitutional and statutory issues involved [in dealing with civil rights crimes] and the desirability of uniform application of federal law in this field….” Which means that prosecutors need to demonstrate a little situational awareness. And that there’s a strong case that this was a test that both Minnesota and federal attorneys flunked in the Floyd/Chauvin case.

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Im-Politic: Comey’s Real Motivation?

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2016 election, Charles Krauthammer, classified material, Eric Holder, FBI, Financial Crisis, Hillary Clinton, Im-Politic, indictment, James Comey, prosecutors, rule of law, Wall Street

Possibly the only certainty surrounding the FBI’s decision not to indict Hillary Clinton for mishandling sensitive government documents is that we’ll be buried in analysis and commentary for the foreseeable future. That’s why it’s so remarkable that the most important point we’ll hear about the controversy may have already been made – by nationally syndicated conservative columnist Charles Krauthammer.

Addressing FBI Director James Comey’s unwillingness to recommend criminal charges against the presumptive Democratic presidential candidate, Krauthammer provided an explanation that’s far more convincing than the claims that Comey’s conclusion was legally justified (unless the “gross negligence” set as a bar for criminality is indeed substantially different than the “extreme carelessness” the FBI did find).

The Krauthammer take is also more convincing than the charges filling the air that the Republican Comey was responding to political pressure from a Democratic administration, or that he absolved Clinton in exchange for an implicit or explicit promise of an official job if she won the White House. Not that this kind of sleaze is unknown in American politics. But these accusations and insinuations apparently clash with everything said over the years by Democrats and Republicans, including hyper-partisans, about Comey’s integrity.

Krauthammer’s alternative hypothesis was more comforting – but only somewhat so. In his view, Comey wound up opposing criminal prosecution for fear of decisively influencing the presidential election – the nation’s most important political contest – with a legal decision. In Krauthammer’s words, Comey:

“knows if he had indicted her, that’s the end of her campaign. That will be the event of the 2016 campaign history. He will be the — it will be the decision that sways everything the most. I think he didn’t want to be that. And I think it’s because she is running. Not so much she is a Clinton, not so much because of her reputation and all that and her power, but I think Comey did not want to be the person that history remembers as changing the course of this presidential election.”

From a purely human and political standpoint, such reluctance to shape political outcomes through even entirely legitimate exercises of legal authority would be entirely understandable. In many ways, the nation still hasn’t recovered from the Supreme Court’s involvement in the 2000 presidential election’s Florida recount. Another legal decision that further poisons the atmosphere and further polarizes the electorate is the last thing America needs.

Nonetheless, if this was indeed Comey’s rationale, then he greatly overstepped his job description. However defensible this judgment on the merits, precisely because law enforcement and politics should be kept as separate as possible, Comey would have had no business deciding a criminal case based on his (or anyone’s) sense of how even the most important election would be affected. The scope for abuse is so vast that this simply can’t be the justice system’s call.

In fact, such reasoning would be disturbingly reminiscent of former Attorney General Eric Holder’s refusal to prosecute Wall Street kingpins for their role in fostering the financial crisis because he was

“concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy.”

Prosecutors are supposed to prosecute – nothing more, nothing less. If they don’t feel free to pursue lawbreakers with a “chips fall where they may” attitude, they inevitably undermine the foundational American belief that no person or institution is above the law. Comey may have had the best of intentions, but even if a sincere and reasonable belief that the public interest required legal restraint motivated him, he would stand guilty of betraying the public trust.

Im-Politic: Clinton, Comey, and the Common Sense Test

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2016 election, classified material, emails, FBI, Federal Bureau of Investigation, Hillary Clinton, Im-Politic, indictment, James Comey, prosecutors, State Department

Yours truly is not a lawyer; never was a lawyer; has no legal education aside from one undergraduate class, harbors no current ambitions to be a lawyer; hasn’t wanted to become one for decades (since the thrill of visiting my late father’s office as a kid wore off); and doesn’t even find lawyer TV shows, movies, or novels all that interesting. Truth in advertising: I did take the law school admission test – because in economically stagnant mid-1970s America, what else was a humanities major supposed to do?

So I’m not qualified to comment from a legal standpoint on the legal aspects of the FBI’s decision not to indict Hillary Clinton. But here are some thoughts from the standpoint of common sense – with a special focus on the Bureau’s judgment that “no reasonable prosecutor” would recommend filing criminal charges against the presumptive Democratic presidential nominee and former Secretary of State.

First, Bureau Director James Comey undercut the “reasonable” part of this contention with his declaration that “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” You don’t have to be nitpicker to recognize that this phrasing indicates that the FBI found some evidence of these intentions. I understand that the American system of justice grants prosecutors considerable discretion on such matters. But this discretion surely is not limitless. Is it really standard practice to absolve the subject of an investigation because some (unspecified) standard of clarity wasn’t met? Above all, was there no “reasonable” argument for allowing a trial to settle the question?

Second, Comey seemed to set an awfully high bar for indictment. Explaining that “Responsible decisions…consider the context of a person’s actions, and how similar situations have been handled in the past,” Comey presented a list of conditions that presumably would have to be satisfied:

“[C]learly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”

Was Comey saying that all four conditions needed to be met? If so, he already ruled out the first. But the second looks fishy. Why do “vast quantities of materials” need to be exposed? Why not, say, a single document saying, e.g., “We’re attacking ISIS on June 1, at 4 PM EST”? Does quality, in other words, have no relevance in the FBI’s calculus?

Moreover, the contention that nothing qualifying as obstruction of justice could be found seems to clash with the finding that Clinton’s lawyers “cleaned their devices in such a way as to preclude complete forensic recovery. ” Since when do honest lawyers assisting an official criminal investigation not err on the side of caution? Indeed, Comey’s conclusion about the lawyers’ conduct was anything but conclusive:

“Although we do not have complete visibility because we are not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”

That is, there’s important evidence that’s still missing. And the Bureau qualified its determination with the phrases “we believe” and “reasonable (that legal mainstay again!) confidence.”

Third, Comey’s overall description of Clinton’s conduct looks like a classic instance of hair-splitting. As he sees it, her behavior was not “grossly negligent” – the apparent standard for criminality. Instead, it was “extremely careless.” What on earth is the difference outside the universe of apologists and public relations flacks?

Moreover, Comey’s definition of “gross negligence” evidently doesn’t encompass his findings that (his own words):

>“There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation”: and

>“we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government. ”

None of these points is meant to suggest that Comey’s judgments were incontrovertibly wrong or even unreasonable. They are meant to suggest that the call not to indict Clinton was incredibly close – so close, in fact, and raising so many further questions, that as suggested above, the proper place to resolve them is not inside a prosecutor’s office. It’s at an open criminal trial.

After he delivered the statement, Comey briskly walked off the stage without dealing with the crowd of slavering journalists assembled in front of him. That’s the recent decision of his I understand best.