Sunday Political Stuff; Forgive Us — Weekly Roundup
July 9, 2017

Out west, in the Ninth Circuit (and in the District Court of Hawaii), lawyers for the State of Hawaii are bouncing back and forth between courthouses in seeking an order that Mr. Trump cannot (consistent with the Supremes’ grant of cert.) exclude grandparents of people from the six countries who have bona fide ties to our nation (i.e., their grandchildren) — all of which simply preserves pre-existing law.

And now, in response to anonymous commentary during the week — we address the case for obstruction against 45; preceded by Turner v. US, decided two weeks ago by the Supremes. While the exculpatory evidence withheld may not have been outcome determinative, that ought not be the test — in my view. When a prosecutor acts intentionally (as here) to withhold exculpatory so-called Brady evidence, there must be a consequence to the prosecutor for that breach of constitutional duties. Even if actual innocence may not be proved thereby. I think Justice Kagan’s dissent is well-framed.

We the citizens need to know that our law enforcement arms “obey the law,” themselves. This is a sad case — and hopefully will be limited to its very narrow and unique fact pattern. In short, it ought to become a largely dead letter — outside this specific fact pattern. [Much of the conviction rested on the notion that the convicted acted as part of a mob of others — and there were in fact multiple witnesses who said so.]

And, turning now to the case for obstruction against 45, I agree with the commentator’s implied view that Slate’s take on it all is cogent — and the case is quite strong (as Slate makes plain), in my view. Here’s a bit:

. . . .Clearing the room before he allegedly raised the Flynn matter with Comey is strong evidence the president knew what he was doing was “improper.” It is also impossible to see how Trump’s purpose here can be deemed “proper” without placing the president above the law. Even the president’s keenest defenders must concede that attempting to stop the Flynn matter by offering a bribe to Comey or threatening his family, physically or economically, would have been improper.

Trump’s alleged actions were somewhat less flagrant here. But courts have ruled, for example, that an attorney can be charged with obstruction when engaging in conduct that would otherwise be ordinary and allowable for a lawyer—like filing lawsuits or giving advice to witnesses—if the lawyer does so for the purpose of protecting himself or his associates from prosecution. Similarly, if a president wields his normally legal executive power for the purpose of halting the investigation of himself or his associates, he acts with an “improper purpose” to obstruct justice. . . .

I do think Mr. Mueller will ultimately say that a charge of felony obstruction will lie — against 45. And he will refer it to Congress for articles of impeachment. And I do believe there will be principled Republicans who will vote those Articles — all within a year. There you have it. Onward — to a new week!

UPDATE: Here is a bit of the preexisting federal immigration law applicable to grandparents — from the six countries:

. . .The Supreme Court has expressly held that an individual suffers a constitutionally cognizable injury if the Government interferes with his relationship with his “uncles, aunts, cousins, and especially grandparents,” all of whom it has expressly described as “close relatives.” Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977); see also, e.g., Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (noting constitutional “right to maintain certain familial relationships, including * * * association between grandchildren and grandparents”). It is indisputable that the exclusion of these individuals would inflict a more substantial injury than the harm from being unable to hear “a lecturer”. . . .

Other immigration provisions enable an individual to seek admission on behalf of “[g]randchild(ren)” and “[n]iece[s] or nephew[s]”; to apply for asylum if a “grandparent, grandchild, aunt, uncle, niece, or nephew” resides in the United States; to apply for naturalization on behalf of a grandchild; or to qualify as a special immigrant if he is the “grandparent” of a U.S. person. Even if these laws were relevant—and the Court gave no indication that they are—they would provide only further confirmation that the Court’s order extends to the very same “close blood relatives” the Government has categorically excluded. Reno, 507 U.S. at 310. . . .

Now you know.