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I'd suggest a possible alternative reason for why prosecutors might want to avoid prosecuting James regardless of the merit of the case: the standard that it establishes exposes them. James is a prosecutor. You're a prosecutor. James did politically motivated prosecutions of your boss. Your boss asks you to prosecute her in retaliation. What's gonna happen to you in 4-8-12 years when the political pendulum swings? You've just walked directly in front of the crosshairs. In contrast, you know your boss' reputation, if you refuse he'll fire you, he might badmouth you a bit, but if you lay low and shut your mouth afterwards, he's not gonna come after you.
What do you think this is?
Democrats laughed and applauded when Barak Obama "joked" on late nite TV about sicing the FBI and IRS on his critics, and dismissed the scandal as a "nothingburger" when it was revealed that he wasn't joking.
While a lot of Trump's supporters wanted to see Clinton, Comey and a lot of other senior Democrats prosecuted, Trump notably did not do this in his first term.
Democrats subsequently elected Letitia James, in part, on the premise that politically motivated prosecutions are a good thing that America needs more of.
Letitia James and her defenders are like an adult dog that was never house broken. They are never going to learn that what they have done is wrong if you don't grab them by the scruff of the neck and shove their face in it.
The Democrats as a people need to be taught that politically motivated prosecutions are going to blow-back on them in 4-8-12 years when the political pendulum swings, and that is what the Republicans are currently doing.
Yeah, but by asking them to be the instrument to teach this lesson, you're asking a lot personally from Republican-aligned prosecutors, you're asking them to make themselves a named, direct target for the next cycle. You're asking them to stand up to draw enemy fire. James probably felt safe because she thought that Trump would not come back and that the next Republican administration will want to distance themselves from Trump and so they wouldn't retaliate on his behalf. But I don't think any Republican-aligned prosecutor can feel quite so confident that the Democrats are not going to get back into power before this fades from memory, and that they will not be in a revanchist mood.
... there's a fun story from the criminal justice sphere, and by fun I mean incredibly depressing.
It's an old Freakanomics bit that drug dealers don't actually make that much money, but despite being in Freakonomics, it's actually true. The distribution agents and runners make peanuts, even mid-level dealers that handle a lot of cash end up spending a lot of that to replace stock, and you have to get real close to the top of the chain to break into high five figures or low six. Now, admittedly, that's tax-free and you don't have to deal with McDonald's customers, but there's a whole new level of problem when 'can't leave work at work' goes from late-night on-call to slightly more energetic concerns, whether from police or from other criminals.
Why would people accept a risk of 45 calibre wakeup calls for less than they could make sllepping fries ends up one of the big driving questions for criminology, and unfortunately there's a ton of different partially-right answers : lack of access to conventional employment, cycles of poverty, casual users making a little bit of money on the side, yada yada.
If you ask the actual people, though, a very common answer (especially once you get away from the casual users) is that they don't plan to stay at the entry-level. After all, it's not like the people at the top now have been there very long, and turnover for the mid-levels is often ridiculous. They're always hiring!
It seems stupid, from the outside view. They're jumping to get into the shoes of imprisoned (or dead) men, with at most vague motions about how they won't step into whatever trap got the immediate previous owner and not the thirty other previous owners. Maybe it is stupid.
They're still always hiring.
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This does indeed seem to be a plausible description of the thought process of these prosecutors.
If I, as a citizen, believe that this is in fact the calculus being performed by members of the executive branch, what conclusions should I draw?
I think few voters have illusions that their politicians have more loyalty to them than they have class loyalty to one another. The amount of knives buried in Trump's back attests to that.
Let me make the question a bit more explicit.
Within the existing system, what is the proper way to respond to Blue Tribe weaponizing the justice system to partisan ends? Because if the answer is "there isn't one", it behooves us to find alternatives outside the existing system.
People accuse me of being an accelerationist, but what's the alternative? We've seen recently that rifles and rooftops are certianly an option on the sociopolitical conflict menu, with the understanding of course that such actions cannot reasonably be attributed to the tribes from which they might emerge because stochastic terrorism abruptly stopped being a coherent concept. What other options are plausibly available?
After reading through this discussion, I am hopeful that going forward, the Blue Tribe will tone down these sorts of abuses. Even putting aside the possibility of tit-for-tat retaliation, it does appear that these lawfare attacks against Trump were not all that effective.
Actually, the fantasy situation for me would be (1) Elise Stefanik is elected governor of New York; (2) she immediately pardons Trump and leans on the AG to withdraw any outstanding civil claims against him; (3) the charges against James are quietly dropped; and (4) both sides agree to refrain from future lawfare attacks.
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But Trump HAS found a prosecutor willing to go ahead with the prosecution for him. In the future, it might just mean that the Red Tribe might have to look to outsiders, sometimes at the cost of not being able to rely on the person with the most inside/institutional knowledge. I don't think you've quite reached the point where the Red Tribe is unable to find anyone loyal to it.
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Trump 1 was plagued with people who didn't want to do what Trump said. He fought with Sessions trying to get him to do it and gave up after managing to get Sessions out. He said on Nov 2, 2017
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I agree that's a possibility. Another possibility is that the prosecutor simply thinks it's abuse of office to engage in politically-motivated retaliation. Even if the prosecution is in retaliation for something that itself was abusive.
Also, even if the prosecutor is not worried about being brought up on trumped-up charges down the road, he still might worry about damage to his reputation. It's very common for former federal prosecutors to end up with high-paying jobs at fancy law firms. Having been the person who prosecuted Letitia James would probably mean having to write off the possibility of future employment at 70-80% of BigLaw type firms. Perhaps more.
There's also the part where lawfare works better when the target of it actually commits a crime. It's admittedly early to tell, but Comey's trial might not go so well for the administration.
A prosecutor's job is to score a conviction. Imagine you're a prosecutor, and your boss tells you you're required to stand in front of a judge being berated because the point was just to harass a guy.
I'm not sure what your point is here. Are you confident that Letitia James has not committed any crimes?
I'm saying attorneys like winning cases because their professional record is the cases they have won. One of the problems with lawfare is by its very nature it's based on going after someone you hate rather than someone who provably committed a crime. If you are a DOJ employee and your boss tells you to find something to stick John Smith with, you may refuse because there's nothing to stick Smith with. Tit-for-tat lawfare is limited by the DOJ's willingness to be put in shitty situations to appease their boss.
With Letitia, I am reading the other thread with interest. I have a bit of passing knowledge of law, but I'm not going to presume to tell the Motte how I think that will go when The Motte includes actual lawyers. Rov_Scam has an interesting analysis. That said, I was pointing out the the Letitia case is not the only example of lawfare going on right now.
Agreed, but so what? I still don't see your point. I agree that in general lawfare results in cases which are, all things being equal, less likely to succeed on the merits. (if "lawfare" is defined as public officials first targeting individuals for political reasons and then trying to put together cases against them). Is that your point?
Except that his analysis appears to be incorrect, at least according to the text of the US Code and a set of pattern jury instructions I found.
Unless he's willing to post information which would allow his credentials to be confirmed, I wouldn't put much stock in it.
Close to it. During Trump's first term, he fought to get Sessions out because A) Sessions recused himself from testifying in Trump's defense during the Russia investigation and B) Trump wanted Sessions to engage in lawfare against Clinton and Sessions refused. Erik Siebert resigned allegedly because he refused to go after Letitia. I am saying that if lawfare results in this kind of staff turnover that also doesn't suggest tit-for-tat lawfare is going to be a recurring theme. I'll grant you that 2 cases out of 3 is low sample size to draw conclusions.
Yes I saw that as well. I don't know that your argument is a slam dunk, though I'm not dismissing it either.
I'm not that jaded that I expect people to dox themselves before I believe them. Rov has been around a while and talks like he knows what he's talking about. That's usually fine for me until someone posts in a way that sets off bullshit detectors.
I sure hope so. Although it's probably worth noting that Letitia James was elected not appointed. Elected on a campaign promise to engage in lawfare.
If he doesn't respond, I'll take it as a concession that (1) he's wrong; and (2) he's sufficiently partisan that he was just BSing.
From my sample (n=1) he's not doing so hot. But as the young people say these days, you do you.
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The case against her existed before Trump wanted to prosecute it. The FBI simply declined to pursue it. Is ignoring the political shield that protects a politician from prosecution that actually anyone else would be subject to the same as lawfare?
I'm defining lawfare as trials motivated by animosity or political advantage, and sincere belief that the guilty should be punished is nonexistent or virtually nonexistent. Any disagreement with that?
Ignoring the shield counts if the reason you are doing so is the desire to bring harm to a specific person. I would even say that lawfare against a politician tautologically requires ignoring that shield. Trump has not exactly demonstrated any strong belief in OpSec in any other situation, between his own administration and storage of confidential documents.
Both Letitia and Trump campaigned on arresting a political opponent, and Letitia's admitting of that seems to be the main point where everyone agrees the mortgage fraud case against Trump was lawfare. The main point of distinction among other people in this thread seems to be that Trump abandoned his attempt after getting into office, which I argue that he probably would have gone through with had he not had the problem with his staff not following orders.
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