Relevant and even prescient commentary on news, politics and the economy.

This Spade Really IS Being Called a Spade. Surprisingly.

THE F.B.I. is currently investigating the hacking of Americans’ computers by foreign governments. Russia is a prime suspect. Imagine a possible connection between a candidate for president in the United States and the Russian computer hacking. Imagine the candidate has business dealings in Russia, and has publicly encouraged the Russians to hack the email of his opponent and her associates.

It would not be surprising for the F.B.I. to include this candidate and his campaign staff in its confidential investigation of Russian computer hacking.

But it would be highly improper, and an abuse of power, for the F.B.I. to conduct such an investigation in the public eye, particularly on the eve of the election. It would be an abuse of power for the director of the F.B.I., absent compelling circumstances, to notify members of Congress from the party opposing the candidate that the candidate or his associates were under investigation. It would be an abuse of power if F.B.I. agents went so far as to obtain a search warrant and raid the candidate’s office tower, hauling out boxes of documents and computers in front of television cameras.

The F.B.I.’s job is to investigate, not to influence the outcome of an election.

That is why the F.B.I. presumably would keep those aspects of an investigation confidential until after the election. The usual penalty for a violation is termination of federal employment.

And that is why, on Saturday, I filed a complaint against the F.B.I. with the Office of Special Counsel, which investigates Hatch Act violations, and with the Office of Government Ethics. I have spent much of my career working on government ethics and lawyers’ ethics, including two and a half years as the chief White House ethics lawyer for President George W. Bush, and I never thought that the F.B.I. could be dragged into a political circus surrounding one of its investigations. Until this week.

On Clinton Emails, Did the F.B.I. Director Abuse His Power?, Richard W. Painter, New York Times, today

 

Actually, the idea that materials gathered in a governmental investigation resolved without prosecution should, in the name of transparency, be made known in summary form when relevant for the guidance of voters is quite frightening.

Comey’s mistaken quest for transparency, Donald B. Ayer, Washington Post, today

When I chose the title for this post on Friday, I didn’t expect that people who actually matter—a lot of them, as there are by now—would outright say this.  I’m very happy to have been proved wrong.

____

UPDATE:  Cool.  (PDF document.)  Also, a cool comment on it at the end of this article.  There’s an incredibly strong consensus that Comey abused his office.  Didn’t expect that.  But it’s happened.

Added 10/30 at 7:13 p.m.

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Did NYC FBI Agents Plant Those Emails on Weiner’s Computer Once They Gained Custody of It? The Evidence Appears to Suggest … Possibly.

Top Hillary Clinton aide Huma Abedin has told people she is unsure how her emails could have ended up on a device she viewed as her husband’s computer, the seizure of which has reignited the Clinton email investigation, according to a person familiar with the investigation and civil litigation over the matter.

The person, who would not discuss the case unless granted anonymity, said Abedin was not a regular user of the computer, and even when she agreed to turn over emails to the State Department for federal records purposes, her lawyers did not search it for materials, not believing any of her messages to be there.

That could be a significant oversight if Abedin’s work messages were indeed on the computer of her estranged husband, former congressman Anthony Weiner, who is under investigation for allegedly exchanging lewd messages with a 15-year-old girl. So far, it is unclear what — if any — new, work-related messages were found by authorities. The person said the FBI had not contacted Abedin about its latest discovery, and she was unsure what the bureau had discovered.

According to federal law enforcement officials, investigators found thousands of messages on Weiner’s computer that they believe to be potentially relevant to the separate, Clinton email investigation. How they are relevant — or if they are significant in any respect — remains unknown.

Clinton aide Huma Abedin has told people she doesn’t know how her emails wound up on her husband’s computer, Matt Zapotosky, Tom Hamburger and Karen Tumulty, Washington Post, Oct. 29 at 7:29 p.m.

On Friday afternoon Yahoo News reported that Abedin stated when she was interviewed by an FBI agent last April that she had used four different devices and accounts to email Clinton, and that one of the devices was the one now at issue.  That report appears to be incorrect.

Here’s what the transcript says:

Q Okay. And what devices did you return for your attorneys to look through with respect to federal records you may have had in your possession to be returned to the State Department?

MS. WOLVERTON: Objection. Beyond the scope.

A My — if my memory serves me correctly, it was two laptops, a BlackBerry, and some files that I found in my apartment.

Apparently neither of those laptops was Weiner’s and therefore the device now at issue.

Also in the transcript of that FBI interview, Abedin told the FBI agent, in answer to a question about whether she deleted her emails from Clinton, that she never deletes emails from anyone, and that she presumed that all her emails dating back many years were still in existence.

Two news reports make it clear that as of late yesterday, the FBI did not yet have the prerequisite court order to read those emails, which appear on a computer taken under a search warrant in an unrelated case concerning an unrelated subject—thus the need for a separate search warrant authorizing access to and review of those emails.

One, on Yahoo News, by Michael Isikoff, titled “Exclusive: FBI still does not have warrant to review new Abedin emails linked to Clinton probe,” says:

As of Saturday night, the FBI was still in talks with the Justice Department about obtaining a warrant that would allow agency officials to read any of the newly discovered Abedin emails, and therefore was still in the dark about whether they include any classified material that the bureau has not already seen.

“We do not have a warrant,” a senior law enforcement official said. “Discussions are under way [between the FBI and the Justice Department] as to the best way to move forward.”

That Comey and other senior FBI officials were not aware of what was in the emails — and whether they contained any material the FBI had not already obtained — is important because Donald Trump’s campaign and Republicans in Congress have suggested that the FBI director would not have written his letter unless he had been made aware of significant new emails that might justify reopening the investigation into the Clinton server.

The other, by four New York Times reporters, titled “Justice Dept. Strongly Discouraged Comey on Move in Clinton Email Case,” reports:

Justice Department officials were particularly puzzled about why Mr. Comey had alerted Congress — and by extension, the public — before agents even began reading the newly discovered emails to determine whether they contained classified information or added new facts to the case.

Law enforcement officials have begun the process to get court authority to read the emails, officials said. How soon they will get that is unclear, but there is no chance that the review will be completed before Election Day, several law enforcement officials said. Many of the emails are most likely copies of messages that the F.B.I. has already read, said the officials, who spoke on the condition of anonymity because they were not authorized to comment publicly.

But Comey himself answered that when he admitted that his motives were political—he wanted the public to know, before election day and as soon before that as possible in states where voting already was underway, that Huma Abedin had provided her husband access to thousands of her email correspondence with Clinton by providing access to them on a computer that Weiner used.  In other words, he wanted the public to know, before they voted, that Donald Trump’s allegation that Anthony Weiner had access to State Department-related emails turns out to be true.

Or, apparently more accurately, the FBI agents who told him they had found those emails on Weiner’s computer wanted the public to know this, badly enough to threaten to leak the information before the election if Comey himself did not make it public.

Comey, in other words, appears to have acceded to an extortionate threat to misuse information gained through the FBI’s prosecutorial powers by himself misusing information gained through the FBI’s prosecutorial powers.  And this spade is actually being called the spade that it is.

So there are three steps that Huma Abedin should take, immediately. First, she should have her lawyers file an emergency court petition tomorrow requesting the immediate sealing and impoundment of Weiner’s laptop and of all other electronic devices taken through the search warrant concerning Weiner’s online sexual activities.

The petition also should request that she be allowed to have Weiner’s computer examined by an independent, non-government computer forensics experts, in the company of FBI computer forensics experts who are from an office far, far away from NYC and Washington, DC, and who have never worked at either of those offices.

And the petition should request disclosure to her of the identities of the FBI agents who, by Comey’s apparent acknowledgement, threatened him with leaks of what they claim are on Weiner’s computer.

Second, she or her lawyers should file a formal complaint with the Justice Department’s Office of Inspector General, requesting investigation into who was threatening Comey with leaks and damage to Comey’s reputation if Comey himself did not make public the existence of State Department-related emails on Weiner’s computer.

The complaint also should request inquiry into Comey’s decision to make public raw information gained by dint of the FBI’s police powers and the Justice Department’s prosecutorial powers, for what he himself has stated was for the purpose of affecting votes for national elective office.

Third, she should ask that her lawyers, immediately after those are filed, hold a press conference detailing what is in the emergency petition and the complaint to the Inspector General’s Office.

Also immensely important: that the fact that that information did end up on Weiner’s personal computer—one that given what he did use it for, was not one that he likely would have invited Abedin to use—has not an iota to do with the facts that Clinton used a private email account and a private server.  Presumably, all sorts of other high-level government employees, some in sensitive positions, probably access their government email accounts from home and also probably do work from home.

And then, of course, there is this: the fact that the FBI has, since late Friday or early yesterday, pushed the claim that Abedin herself had provided that computer to the FBI last spring—after Comey said that Abedin had NOT produced it during the investigation of the email matter, and that that is why he felt compelled to “update” the public–er, the Congress–does speak quite loudly, doesn’t it?

In any event, I will say this: Trump may well prove right after all in his claim that this is bigger than Watergate.

Okay, well, as big, anyway.

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Was Comey effectively extorted by NYC-based FBI agents? And did those agents illegally look at some of those emails without the prerequisite court order?

Most Democrats were outraged. “Mr. Comey said he was duty bound to inform Congress,” Bob Kerrey, the former senator and governor, told me. “Quite the opposite is the case. He was duty bound to make an announcement after he completes his examination of the emails.“

Indeed, he broke with the longstanding F.B.I. policy of not commenting on ongoing investigations.

Comey, Clinton and This Steaming Mess, Frank Bruni, New York Times, today

Bob Kerrey is exactly right, and I’ve posted two posts making that point, the second of them urging Newsweek to retract its representation yesterday that the law required Comey to do what he did, because Comey had told Congress under oath last summer that the FBI investigation was closed—a claim that is utter nonsense.

In response to the first of my posts, reader BillB, in replying to a comment by reader BKrasting, described what I believe amounts to a bizarre decision by some FBI agents involved in the Weiner investigation to effectively extort Comey into disclosing the discovery of the emails (which may be duplicates of ones already investigated).

Here’s what BillB wrote to me in the comments thread to the second of my posts:

BillB / October 29, 2016 4:25 pm

You are absolutely right. I’ll just resubmit what I put in your previous posting in response to bkrasting:

“Would you have preferred that the head of the FBI deliberately break the law?”

Broken what law? Name the law or you are just blowing smoke. There is no law requiring the FBI director to release preliminary information on an investigation it hasn’t even done yet.

Are the emails from or to Clinton? He doesn’t know because he hasn’t seem them yet. Are they related to any other investigation that the FBI has done? He doesn’t know because he hasn’t seen them yet.

The responsible thing to do was to wait until he had a determination of their relevance before making a public announcement. He is not withholding anything because at this point he doesn’t even know what he is holding. It may be absolutely nothing.

But Clinton is correct. At this point Comey has muddied the waters and the only way he can fix it is to immediately tell the public everything he knows and everything he does not know.

The back story to this is management incompetence. The New York FBI office is upset at the DC office because they pulled off and replaced the local FBI agents in the investigation of the Eric Garner case because they were refusing to aggressively pursue the case.

In retaliation, the New York agents were threatening to prematurely leak the email information in defiance of FBI protocol. Comey fell prey to the blackmail and felt that he had to get ahead of the leakers to preserve his credibility with Republicans in Congress. Comey was just covering his own ass. The fact that he can’t control his own office indicates gross incompetence.

I replied:

Beverly Mann / October 29, 2016 4:34 pm

That in itself is a BIG story. But since when does the FBI director make a premature or otherwise inappropriate announcement about a pending investigation because FBI agents are threatening to do so themselves?

This was an appallingly inappropriate use of the FBI itself–of the agency itself and its investigatory powers–in the service of a political goal.

If Comey was effectively extorted, that strikes me as itself a criminal act.

BillB responded:

BillB / October 29, 2016 4:58 pm

I don’t think there is any criminality involved. In any large government or private corporation the saying is that “Information is power.” And people will trade that information as a lever to further their own political interests within the organization. It happens all the time and it isn’t criminal.

But it is despicable. It is evidence that Comey is an incompetent leader. It is evidence that, contrary to Comey’s claims of acting out of ethical imperative, he was simply acting in his own self-interest to preserve his Republican credibility and cover up his own lack of leadership to control his staff.

I dunno.  This wasn’t trading information within an organization.  This was threatening to reveal to the public information that Comey himself already knew—raw, preliminary information obtained through a nascent FBI investigation—unless Comey himself made it public, in order to impact an election for president and for control of Congress.

Sure sounds to me like misuse of information obtained in an incomplete FBI investigation.

It also appears that these agents may have looked at some of the emails without the prerequisite court order  as required by the Fourth Amendment.  Descriptions of the nature of the emails have now been leaked, according to Greg Sargent this morning, who also questioned how this information was known to FBI agents when apparently no search warrant had yet been issued as of early this morning.

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Newsweek Really, Really, REALLY Needs to Retract THIS Statement

Updated  | Why did FBI Director James Comey shock Washington on Friday with an announcement that the FBI “has learned of the existence of emails” related to Hillary Clinton’s private email server, and what does it mean?

The truth is Comey didn’t have a choice. Because the new information followed his sworn testimony about the case, Comey was obligated by Department of Justice rules to keep the relevant committees apprised.

Under oath Comey had stated that the bureau had completed its review. Once he learned that there were new emails that required examination, Comey had to notify Congress that he had to amend his testimony because it was no longer true.

Why FBI Director Made Clinton Email Announcement Now, Michele Gorman and Matthew Cooper, Newsweek, Oct. 28 at 2:40 p.m.

Under oath Comey had stated that the bureau had completed its review. Once he learned that there were new emails that required examination, Comey had to notify Congress that he had to amend his testimony because it was no longer true?

WOW.  That is utter nonsense–although I know that that is something that Comey is claiming. That Newsweek just repeats it as gospel is seriously outrageous.

What Comey testified to under oath is what was true when he testified to it under oath.  There is no obligation to apprise investigators, a grand jury, the FBI, Congress, or any other investigative body or agency, that something that was true when you said it has now changed. This is NOT an instance of misstating a fact and learning later that the fact you stated was not true when you stated it; that may or may not require correction, depending on the circumstances, but it is NOT what happened in THIS circumstance.

If Comey truly doesn’t recognize the difference, he’s wayyyyy over his head in that job he has. But he does, apparently.  He sure didn’t make that claim in his email message late yesterday to FBI employees, stating his reasons.

This is bullsh_t of the first magnitude.  That Newsweek reporters and editors that clueless, that credulous, is … oh, I don’t know … par for the course these days?  They reported this as “the truth,” folks.

Lordy.

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James Comey’s Appalling Abuse of Office

“I got a lot of respect for Jim Comey, but I don’t understand this idea of dropping this bombshell which could be a big dud,” said former federal prosector Peter Zeidenberg, a veteran of politically sensitive investigations. “Doing it in the last week or ten days of a presidential election without more information, I don’t that he should because how does it inform a voter? It just invites speculation … I would question the timing of it. It’s not going to get done in a week.”

Nick Akerman, a former assistant U.S. Attorney in the Southern District of New York, was more critical: “Director Comey acted totally inappropriately. He had no business writing to Congress about supposed new emails that neither he nor anyone in the FBI has ever reviewed.”

“It is not the function of the FBI Director to be making public pronouncements about an investigation, never mind about an investigation based on evidence that he acknowledges may not be significant,” Akerman added. “The job of the FBI is simply to investigate and to provide the results of its investigation to the prosecutorial arm of the US Department of Justice. His job is not to give a running commentary about any investigation or his opinion about any investigation. This is particularly egregious since Secretary Clinton has no way to respond to what amounts to nebulous and speculative innuendo.”

Comey’s disclosure shocks former prosecutors, Josh Gerstein, Darren Samuelsohn and Isaac Arnsdorf, Politico, 6:59 p.m. today

Former prosecutors aren’t the only ones shocked by Comey’s disclosure.  I have firsthand knowledge of this and can attest to that fact.

This strikes me as an outright abuse of office by Comey.  As FBI director he learned that the FBI had found new information potentially relevant to a closed investigation but had not reviewed it yet and so its significance is uncertain.  What legal authority does he have to disclose this?  Any? At all?

I have no expertise whatsoever on the breadth of latitude that law enforcement investigative agencies have to disclose raw investigative information, but it sure as hell seems to me unlikely that it extends to willy-nilly disclosure of that information.

This guy apparently thinks that his first obligation is to protect his own reputation from certain types of criticism.*  But actually it is not.

He chose to serve his own interest when faced with what amounted to a conflict of interest.  He doesn’t belong in that job.

 

____

*I added that link at 11:22 p.m. after reading the Washington Post article that the link is to, in which dismayed former prosecutors and former Department of Justice officials make statements similar to mine.  What also is clear from that article, which reports on a letter Comey emailed to FBI employees this afternoon explaining his decision to notify Congress, is that Comey seems not to understand the role of the FBI in a matter of this sort, and misunderstands the meaning of the term “cover-up” as including ongoing investigations that have not been publicly disclosed, rather than just killing investigations.

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Donald Trump, A Man After My Own Heart

I don’t think we should have justices appointed that decide what they want to hear.

– Donald Trump, last night

Wow.  Out of the mouths of babes.   Or something.  I don’t think we should have justices appointed that decide what they want to hear, either.

OMG.  I’ve been supporting the wrong candidate!

Repeal the Supreme Court Case Selections Act of 1988!  Repeal the Supreme Court Case Selections Act of 1988!

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No, Mr. Trump, THIS is what a movement looks like

There it was.  That familiar logo, the one I’d seen on so many lawn signs and bumper stickers in my (very) liberal small-city college town, and at the top of so many emails I’d received since early summer 2015.  The logo with “Bernie” in sky blue, with a little star over the “I” instead of a dot, and the narrow wave of a sky blue line underlining it, with the similar line except in red under the blue one.

I’d checked my emails late last night and had seen the one from him.  With a subject line reading: Yuuuge.

Below the familiar logo at the center top was this message:

Beverly: Since earlier today, 10,000 people have donated more than $400,000 to Catherine Cortez Masto, Deborah Ross, Maggie Hassan, and Katie McGinty.

That’s how much people want Paul Ryan’s warning about Bernie Sanders becoming chair of the budget committee to become true.

What you’re doing for these candidates is yuuuge. It’s game-changing for their campaigns. But there’s still more to do, because we can do more than just take back the Senate. We have a chance to take back the House. It starts with helping candidates for Congress who are inspired by the political revolution.

So we’re going to set an audacious goal that we don’t know is possible to hit by tomorrow night’s final FEC fundraising deadline – but it’s one that is very important to try to reach.

Let’s raise $1 million for candidates for the House and Senate by tomorrow’s final FEC fundraising deadline of the campaign. Split a contribution between Deborah Ross, Zephyr Teachout, Nanette Barragan, Tom Nelson, Pramila Jayapal, Rick Nolan, and Morgan Carroll.

Adding a contribution to these candidates – even if you’ve already supported them – is so important right now. Every poll shows these races within a handful of percentage points. And every contribution you make to these candidates will go to the critical work of communicating with voters and organizing for Election Day.

We don’t know if we can reach $1 million for House and Senate candidates tomorrow. But it’s very important that we try.

Adding a contribution to these candidates – even if you’ve already supported them – is so important right now. Every poll shows these races within a handful of percentage points. And every contribution you make to these candidates will go to the critical work of communicating with voters and organizing for Election Day.

We don’t know if we can reach $1 million for House and Senate candidates tomorrow. But it’s very important that we try.

If you can, add a contribution to reach our goal.

Thank you,

Jeff Weaver
Team Bernie

By this morning I’d forgotten about it.   And anyway, I’d sworn that that donation I made last week to the DSCC during one of their triple-match drives was my absolute last campaign donation.  Ever.  Okay, I’d meant, in this election cycle.  Which feels like ever.  (I haven’t donated to Clinton.)

But then.  There it was again.  The logo.  Bernie had emailed me again, this time with the subject: I hear you want me to have a gavel.

I do, so I’d clicked the message, which read:

Beverly,

I heard what Paul Ryan said about me: that if the Republicans lose the Senate, I will be the chairman of the Senate Budget Committee.

That sounds like a very good idea to me. It means that we can establish priorities for working people, and not just the billionaire class.

What would be equally exciting is if the Democrats took back the House, and Congressman Ryan was no longer Speaker. That would mean the clearest possible path to enact our agenda – the most progressive agenda of any party in American history.

In the last day, you have responded tremendously to our call to support four leaders who will help shift the balance of the Senate. More than 20,000 people have contributed more than $900,000 to ten candidates who are inspired by the political revolution.

During our campaign we pushed ourselves to reach goals that many thought impossible. That is why we set a very big, very audacious goal that we didn’t know if we could reach, but that we thought it was very important to try. But you’re about to smash that $1 million goal.

So, we’re going to need a bigger goal.

Let’s raise $2 million before tonight’s final FEC deadline of the campaign for candidates for the House and Senate. Can you start with a contribution between Paul Clements, Catherine Cortez-Masto, Deborah Ross, Zephyr Teachout, Morgan Carroll, Nanette Barragan, and Rick Nolan?

Consider for a moment the power that exists in the U.S. Senate. Right now, the Republican majority is using their power to block any meaningful action on addressing income inequality or climate change. In addition, without a Democratic majority the Senate is refusing to confirm federal judges and, incredibly, has left open a critical seat on the Supreme Court.

With a Democratic majority, we can change all of that. What Paul Ryan is specifically afraid of is the power of the budget committee. That committee defines the spending priorities of the entire government. The work of that committee says how much revenue the government should have, and where its money should go.

I have some thoughts on how the government should allocate its spending. I’m sure you do, too.

The first step to being able to enact our progressive agenda is taking back the Senate. And if we take back the House… well, the sky is the limit for what we can achieve.

Help us reach for our new, audacious goal of raising $2 million for candidates for the House and Senate by midnight tonight. Add a contribution now split between Paul Clements, Catherine Cortez-Masto, Deborah Ross, Zephyr Teachout, Morgan Carroll, Nanette Barragan, and Rick Nolan.

Thank you for all you do.

In solidarity,

Bernie Sanders

Sigh.  I’ll hate myself in the morning.

Here’s the link, folks.  And, btw, a graphic inserted into the second email, sent at 2:10 this afternoon, shows that they’d raised $1,137,888. Since yesterday morning.

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Anthropomorphic Mexico

WASHINGTON — In June of 2010, four boys were playing in the dry bed of the Rio Grande that separates El Paso from Juárez, Mexico. The international borderline, unmarked, runs through the middle of the culvert.

The boys dared one another to run up a concrete incline and touch the barbed wire of the American border fence. An American border guard, Jesus Mesa Jr., grabbed one of them.

Another boy, Sergio Hernández Guereca, fled, and he made it back to Mexico before Mr. Mesa shot him in the head from about 60 feet away, killing him. Sergio was 15.

Last week, the Supreme Court agreed to decide whether Sergio’s parents may sue Mr. Mesa for violating the Constitution by using excessive force. If not, lawyers for the parents argue, then Sergio died in “a unique no­-man’s land — a law­-free zone in which U.S. agents can kill innocent civilians with impunity.”

Had Sergio been killed in the United States, he would have been protected by the Constitution. Had he been an American citizen, he would have been protected whether he was killed in the United States or in Mexico.

An Agent Shot a Boy Across the U.S. Border. Can His Parents Sue?, Adam Liptak, New York Times, yesterday

Dan emailed me the link to the article yesterday, with a subject line, “This might be of interest.  To which I responded:

This is very much of interest, Dan.  It’s not simply the narrow legal question about whether the family of this teen can sue for a violation of a U.S. constitutional right.  It’s also what I consider an absolutely critical issue: the Conservative Legal Movement’s aggressive privileging of the rights of “sovereigns” over the rights of individuals–usually they mean U.S. states–as though the “sovereign” is a person.  They call it the “dignity” of the states, and I guess in this case they’re calling it the “dignity” of Mexico.

Of course, the difference here is that, unlike in the states’-rights-to-violate-individuals’-rights–which almost always means state-courts‘-rights-to-violate-individuals’-rights (this dignity concern does not extent to the other two branches of state government)–the government whose dignity the Conservative Legal Movement judges are so concerned with is–what?–waiving its right to have the Conservative Legal Movement protect it from this affront to its dignity.

And, btw, the Fifth Circuit is the only circuit among the 12 federal appellate circuits that remains so thoroughly within the chokehold of the Conservative Legal Movement.  But if Trump wins, they’ll all quickly begin reverting back to it.

I’ll write something on this, but it’s a complex subject and I might not be able to finish it today.  But if not, then tomorrow.  I want it posted before Wednesday night’s debate.

What I was referring to when I said it is very much of interest (to the general public) is not fully apparent in the above excerpt; after all, most Americans will never be in a situation in which they are physically in a legal no-man’s-land.  But the operative word there is “physically,” by which I mean, in a physical rather than a metaphorical place whose very legal status, its reach by this country’s basic precepts of law, are deemed by this country’s federal courts to be nonexistent.

In legal jargon, what I’m talking about is the issue of “subject-matter jurisdiction”—the threshold authority—of federal courts to hear, to address, to consider, to not dismiss for lack of threshold legal authority to hear it, the lawsuit (whether civil in nature or quasi-criminal in nature, which is what most habeas corpus cases really are) whose purpose is to make a claim of one sort or another under the laws of this country.

But due entirely to a set of Supreme Court-concocted legal “doctrines” in civil cases and the lower federal courts’ all-encompassing interpretations of it, and a rewriting by the Supreme Court’s Conservative Legal Movement crowd of an already-awful 1996 jurisdictional statute to effectively repeal the Constitution’s habeas corpus provision’s applicability (via the Fourteenth Amendment) to state-court criminal convictions and sentences, anything that occurred in state court or is related in some way to what occurred in state court that arguably or inarguably violates a constitutional right of the individual who challenges it federal court is ruled beyond the jurisdictional reach of the federal courts.

And while the habeas corpus jurisdictional statutory interpretation at least purports to be, well, statutory interpretation, no such claim was ever made about one of the two doctrines barring access to federal court in non-habeas cases concerning something that occurred in or relating to state court.  It was always unabashedly simply a policy preference by the Court.  And as such, it violates the Constitution’s Article III, which accords Congress the sole authority to determine federal-court jurisdiction (subject to the Supreme Court’s determination that jurisdictional statute, or the absence of one, itself violates the Constitution).

The other of the two Court-fabricated jurisdictional doctrines is unique in its weirdness and, for the last 28 years, in its audacity.  The 5-4 opinion that created it in 1983 was a standard statutory-interpretation opinion, but the statute it interpreted was repealed five years later at the behest of William Rehnquist, then newly elevated as chief justice.  But instead of just dying with the repeal of the statute, it remained, but, like the other one, just a Court-created “doctrine”.

This itself has operated to permit the lower federal courts to treat the continued viability of the doctrine, post-1988-statutory-repeal, as it treats the other doctrine: as unchallengeable via litigation, by dint of its provenance as a Court-created jurisdictional pseudo-statute.  Or something.  And therefore beyond the reach of a court challenge to its continued viability, and its very constitutionality.  It’s not a statute, see.  And it’s not an Executive Branch regulation or policy, see.  It, like the state-court events that these doctrines, together, serve to bar from constitutional challenge in federal court, exist in a legal no-man’s land.  The actions, the operations, the consequences—they sure may be unconstitutional, but they’re also un-remedial.

Like the Mexican teen’s family’s case, according to the Fifth Circuit Court of Appeals.  And according to the Obama administration.  Liptak explains:

The Obama administration, in a brief urging the justices to deny review, said allowing civil suits in American courts was not the right way to address cross-­border shootings by American agents. The Mexican courts have jurisdiction over events that happen in Mexico, the brief said.

True enough, and the Mexican authorities did charge Mr. Mesa with murder. But the United States has refused to extradite him.

The government of Mexico filed a brief asking the Supreme Court to hear the parents’ case. “Applying U.S. constitutional law in such a case does not disrespect Mexico’s sovereignty,” the brief said. “Any invasion of Mexico’s sovereignty occurred when Agent Mesa shot his gun across the border at Sergio Hernández — not when the boy’s parents sought to hold Agent Mesa responsible for his actions.”

A trial judge dismissed the case, but a three-­judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, let part of it move forward.

“If ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience,” Judge Edward C. Prado wrote, what Sergio’s parents described was that case.

The full Fifth Circuit reheard the case. While it agreed that “the death of a teenaged Mexican national from a gunshot fired by a Border Patrol agent standing on U.S. soil” was a “tragic incident,” it said Sergio’s parents could not pursue a claim under the Constitution.

A 1990 Supreme Court decision, United States v. Verdugo­-Urquidez, supports that view. It said some constitutional rights applied only within the nation’s borders unless the plaintiff had a “significant voluntary connection” to the United States.

But a more recent decision, Boumediene v. Bush in 2008, concerning people detained at Guantánamo Bay, Cuba, took a more flexible approach. It allowed detainees there to invoke the Constitution. The Fifth Circuit relied on the narrower view. By contrast, the Ninth Circuit, with jurisdiction over the border states of Arizona and California, has said that “the border of the United States is not a clear line that separates aliens who may bring constitutional challenges from those who may not.”

Under that broader standard, a trial judge in Arizona last year refused to dismiss a civil case against Lonnie Swartz, a Border Patrol agent who is accused of killing José Antonio Elena Rodríguez, 16, in another cross­-border shooting. Federal prosecutors have charged Mr. Swartz with murder, and he has pleaded not guilty.

Mexico’s Supreme Court brief described several other cross­-border shootings. More generally, it said, “shootings at the border — whether or not justified in any particular case — are, unfortunately, far from a rare occurrence.”

A 2013 report commissioned by United States Customs and Border Protection studied 67 shootings from 2010 to 2012. “Too many cases,” the report said, “do not appear to meet the test of objective reasonableness with regard to the use of deadly force.”

It’s all about preserving the dignity of the sovereign (or the “sovereign,” depending upon your viewpoint).  “Dignity”and “sovereign” being the Supreme Court’s terms, repeated time and again in cases justifying the incessant rulings by that court privileging the rights of state courts, but not the rights of state legislatures, and not the rights of state executive branches, at the cost of the constitutional rights of individuals that state courts, or someone or some entity related to something that happened in or in connection to one, has trampled.

At the Supreme Court in recent decades, states’ rights usually means state courts’ rights to violate individuals’ constitutional rights.  In the name of preserving the anthropomorphic right of the state to dignity.  Or, to be precise, their sovereign dignity.  Sovereign here apparently meaning the monarch, since monarchs, after all, are human.

But now the Mexican government, unlike the state governments whose dignity the Supreme Court’s Conservative Legal Movement knights in shining robes defend so gallantly, begs to differ on the meaning of sovereign dignity and on the underlying purpose of it.  That government, although it surely appreciates the thoughtfulness of the sentiment, apparently considers its citizens the ones entitled to dignity under civil rights and civil liberties and human rights law.  And in fact it may not even consider itself human.

How refreshing.

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