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It appears as though you have pretty much already stated that you would like such people to be prosecuted. My question to you is why you think people like Mike Flynn were vigorously prosecuted for substantially less troubling behavior, with respect to the same law, while it was just known that these folks were never going to get prosecuted.
Which actions would those be?
Like, for example, when Glenn Greenwald possessed national defense information belonging to the NSA, he had no right to retain them and should have handed them over rather than publish them on the internet? Would you support vigorous prosecution of Glenn Greenwald?
There must always be a process. There must always be a "who decides" and a when that decision is made. I think in nearly all cases, such determination would flow from Article II, just the same as for classified information.
Right, but the question is whether he actually solicited something illegal. "Can y'all have a special session and look into this?" doesn't seem like soliciting something illegal.
I think these hypos are focused precisely where they should be: on the secretary of state or public official who is actually doing something. At that point, we can look at what they've actually done, we can start to look at the rationales involved and such. But this is a vast step removed. "Hey, can you look in to whether Trump is less than 35?" is monumentally stupid, but it seems to beggar belief that it should be criminal.
This is a good segue to the other comment, where Trump's tweet is apparently an overt act in furtherance of a conspiracy. I don't necessarily agree with the implications of his claims in the tweet, but IIRC, there were, in fact, some state legislatures who had tried to or expressed desires to exert some power over the process, given some of the weirdness that occurred with last minute judicial changes to the election proceedings. The validity of those attempts are pretty complicated, and while I might agree for any particular state that, in the end, the balance of state and federal law leans against that being the proper outcome, it is surely more akin to, "Section 3 is a complicated question involving deep questions of law and history," than, "Is Trump under 35?"
I would also note that, as best as I can tell, the indictment did not cite that tweet in support of the claim that he is guilty of the charge in question.
Scoping back out, I think my major point is that, even if at the end of the day we can construct some minimally plausible way to "get Trump" on at least one of the charges, nearly every single charge that we've seen has either deep theoretical or practical complications/issues, or both. They implicate incredibly deep and complicated issues of statutory interpretation, Constitutional boundaries, and Presidential powers. They all require quite a bit of straining to even get close. And when we cut into them, we see something like, "He didn't have to do anything; he just had to ask someone to look in to something," which is extremely troubling.
With such incredible complications, if I were to scope way out and try to do a similar estimate to what I did back in the Hillary case (of "success"), I'd probably have to say something similar. Perhaps with an additional caveat or two. Caveat one: my estimate is going to be, "What would the chances be for a successful prosecution under these theories/facts, but not in a world involving such immense polarization around it being Trump, like if it was just a regular, non-polarizing person?" The question without this caveat would be more of an exercise in predicting the forum and the resulting composition. The second caveat is that my estimate is going to be after appeals have gone up to actually balance these deep theoretical/historical concerns with at least some care taken for not completely fucking up the future. That is, Ted Stevens may have been found guilty, and that may have been enough to sink his political career, but after the partisan incentives subsided, we realized that it was not supportable if we're going to have even minimal concern for the way things should be done in a healthy democracy.
So, with those caveats, I would similarly put "success" on these charges at something closer to 50/50 than 80/20. And similarly to what I said about Hillary's non-prosecute, I would be just fine with seeing a non-prosecute of Trump, too, especially considering that everyone knows that he's a major frontrunner candidate. It is deeply troubling that some politicians, the ones disliked by the permanent bureaucracy, are going to get hounded on questionable charges as a mechanism to prevent them from (re)attaining political office, while the ones who are liked by the permanent bureacracy skate freely. It is an absolutely unsustainable situation that will drive further polarization, further disbelief in the legitimacy of our institutions, further disbelief in the legitimacy of our elections, and even more damage to the health of our democracy.
I would put my preferences in order of 1) Just fucking vote against the guy and make him lose again, 2) Actually lay out a real, solid case that he "engaged in" or "provided aid and comfort" to an insurrection and go through a proper process of rendering him ineligible under Section 3, 3) Bring endless ticky-tack charges that fill the pages of numerous indictments, trying to win by the persuasiveness of many words and hoping that any, just one, of your charges happens to find an left-enough-leaning jury to get it to stick (at least until appeals long after it matters). So far, I'm really getting the sense that you're gradually retreating toward, "Ehhhh, if we really squint our eyes, we can mayyyybe teeeechnically get him on X," than, "No, actually, right here is a clear example of obvious lawbreaking that is squarely within the purpose of the law and its long-standing application, without any serious theoretical/factual deficiencies/questions."
Apologies for the delay in responding again.
I'm having a bit of trouble parsing what is going on here. I'm guessing from context that you're quoting stuff about Combetta lying to the feds or something?
Wikipedia tells me that Flynn did a plea deal admitting guilt under 18 U.S. Code § 1001(a)(2), which says:
It's not completely clear to me what this does and does not mean, but given Flynn was charged with it in relation to making false statements to the FBI, I'll assume it uncontroversially covers that behaviour. In which case, if I'm interpreting your quote correctly and there is solid evidence that Combetta also lied to the feds, then yes I absolutely agree that Combetta should have been prosecuted. There's a separate policy argument to be made whether or not "don't lie to feds" should be a rule, but that's a matter for Congress. Prosecutors and judges have a responsibility to apply the law as it is.
I'm not game to venture an opinion as to why the disparate treatment occurred. I can certainly imagine or hypothesize that it was for reasons of political influence, but I obviously don't actually know. But regardless of the reason, the mere fact of disparate treatment would be sufficient for me to say that the relevant decision makers should have been shown the door and more even-handed ones appointed.
Now onto Trump and the documents case:
Wilful retention. He was repeatedly asked over the documents beginning in May 2021. He was warned that failure to comply with that failure to comply with that direction would be referred to the DoJ, and he failed to comply with that direction.
I'm not familiar with the particulars of this incident. But on a facial description, yes? Journalists don't get a pass to break the law just because they're journalists.
It appears to me that the "who decides" would be the court, and the "when" would be at such point when a breach of the law is prosecuted. In much the same way as if you are charged with sending threatening messages, it is the court who will determine whether or not the content of those messages counts as "threatening".
Absolutely correct. "Call a special session for no particular reason"? Not illegal. "Call a special session to investigate this thing?" Not illegal. "Call a special session to give your electoral votes to the loser of the election?" Illegal.
I'll get to the rest of your post later.
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