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Several thoughts about Paul Krugman’s NYT column today – UPDATED regarding the Fourth Amendment issue, and (separately) the suddenly real possibility that Putin had the emails planted on Weiner’s laptop

Paul Krugman’s column today titled “Working the Refs,” which I linked to this morning in this post, is absolutely wonderful for its account of the breadth of what amounts to largely successful attempts at movement-rightwing takeover of so very much of American public life—journalism reportage and editing methodology, political punditry, decisonmaking by college and university academic hiring committees, self-styled-centrist fiscal policy organizations. (There is also the courts, but that’s really a separate matter.)

But there are two points I want to make about statements in his column.  One concerns the nature of Comey’s misconduct, which Krugman describes as violating “longstanding rules about commenting on politically sensitive investigations close to an election; and [doing] so despite being warned by other officials that he was doing something terribly wrong.”

That is only part of it, albeit the most immediately harmful part.  But pundits, and the public, should understand that it is a profound misuse of government investigatory and prosecutorial powers to release to the public raw information obtained through compulsory, and secret, investigatory information gathering—information gained through search warrants, grand jury testimony, etc.—and that this is so not only for politically sensitive investigations.

Comey’s deliberate decision, his acknowledged motive, to affect voters’ decisonmaking in an imminent election strikes me as criminal misconduct, as does the release of raw investigatory information irrespective of its political intent.  But these are two distinct issues, of equal importance.

Then again, as I said here yesterday, by Comey’s definition of cover-up, he is engaging in it, as Harry Reid noted in the letter he released yesterday.

I also want to point readers to Orin Kerr’s Washington Post blog post from yesterday titled “Was it legal for the FBI to expand the Weiner email search to target Hillary Clinton’s emails?”  Kerr blogs at the Washington Post’s The Volokh Conspiracy blog, whose contributors all are former law clerks to Republican-appointed justices, and current law professors.  All are center-right libertarians. Kerr, perhaps the least right of them is a law professor at George Washington University and a former law clerk for Anthony Kennedy. 

Kerr’s post begins:

FBI Director James B. Comey recently announced that the FBI had discovered new emails that might be relevant to the investigation of Hillary Clinton’s email server. The emails were discovered in an unrelated case, and the FBI now plans to search through the emails as part of the Clinton server investigation.

Comey’s announcement raises an important legal question: Does expanding the FBI’s investigation from the unrelated case to the Clinton case violate the Fourth Amendment?

We don’t know all the facts yet, so it’s somewhat hard to say. But here’s why the expansion of the investigation might be constitutionally problematic. Consider this a tentative analysis unless and until more facts emerge.

He goes on to raise two Fourth Amendment concerns, one which he says, and I agree, seems sort of weak, the other which he says is a significant concern, his take on which is the same as mine in the comments thread to this post.

The FBI obtained a search warrant late yesterday, so the judge who granted it thought the Fourth Amendment wasn’t a bar to it.  But it should be noted that Comey issued his announcement before a search warrant was obtained and in the face of a potential Fourth Amendment issue that might have prevented the FBI from obtaining one.

The other point concerns Krugman’s awesome recitation, yet again, of how deficit mania grabbed a stranglehold on elite policymakers and so-called public intellectuals for so very, very long—and how devastating it has been throughout the last decade.  What he doesn’t mention—appropriately, I think, in that column, whose point is much larger, but inappropriately in any discussion by him (there have been many) of Hillary Clinton and her candidacy in the two or three weeks since a stolen WikiLinks document—this one, a transcript of a paid speech by her to (I think) Morgan Stanley in 2013—in which she says she supports the really awful Bowles-Simpson proposal that Krugman has deconstructed so often since it was announced years ago.

I do get his reluctance during this campaign to address that.  And Clinton clearly has reversed her views on virtually everything in that proposal, a change on her part that I believe is genuine.  But what angers me about Krugman’s consistent refusal to acknowledge this and other significant changes in Clinton’s policy positions, prompted to a significant extent initially by Bernie Sanders’ campaign—not least the healthcare insurance “public option” proposal”, which Clinton should campaign on at rallies—is Krugman’s borderline-vile attacks on Sanders during the primary season.

Clinton’s win in this election will be based on the sheer awfulness of Donald Trump and on the policy proposals Clinton adopted last summer because of the strength of Bernie’s campaign.  All that matters now is a Clinton victory and Democratic control of the Senate and large gains in the House.  And I plead with Bernie, with Elizabeth Warren, with Michelle and Barack Obama, to campaign maniacally for these candidates in the now-waning days of this campaign.

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UPDATE:  About an hour ago, Politico posted a lengthy discussion of the Fourth Amendment issue, by Josh Gerstein, Politico’s legal-issues correspondent.

Gerstein’s article also discusses the fact that Abedin says she does not know how what appears now to be a huge trove of emails of Abedins came to be on Weiner’s personal computer–an issue I discussed here yesterday in a post suggesting the possibility that NYC FBI agents planted it on Weiner’s computer after they gained custody of it.

But Gerstein’s article notes this: that Abedin had an email account on Clinton’s server.  Is it a reach to now suspect that Putin planted those emails on Weiner’s computer and planned somehow to make public just before the election that State Dept. emails are on Weiner’s computer hard drive?  As I mentioned in the Comments thread yesterday on my earlier post, in response to a joke by a reader’s comment, I’d considered that possibility by rejected it as implausible.

It’s now not at all implausible.  And it makes it imperative that, as Harry Reid demanded in his public letter to Comey yesterday, the Justice Department release the information it and other national security agencies have indicating direct coordination between Trump, or people on behalf of Trump, and Putin.

Adedin and Clinton and the Democratic National Committee should file an emergency court petition requesting a court order requiring release of that information.  I absolutely mean that.

And as I suggested in my earlier post, they should petition a court to allow private computer forensics experts, along with FBI forensics experts from an office far from NYC and Washington, DC. to examine the computer in order to determine when and how those emails came to be on it.

I absolutely mean that, too.

And please remember: Trump kept saying that Abedin was a State Dept. security risk because Weiner would have access to her emails.  He’s now saying he called it correctly.  The court petition should note this.

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PS: Since I’m more or less the legal-issues guru on this blog, I want to point readers to Jennifer Rubin’s blog post on this, with which I agree in every respect.

And since I’m also one of the political-issues gurus here, I want to recommend two perfect political cartoons, one by Tom Toles, the other by Ann Telnaes.

Added 10/31 at 4:08 p.m.

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Miranda Rights 101 and Enemy-Combatant Law 102. No, Make That 345 and 346 (Advanced Seminars).

The two immediate what-everyone’s-talking-about legal issues in the Dzhokhar Tsarnaev case concern his Miranda rights–that is, at what point must he be read his Miranda rights notifying him that he has the right to remain silent and to the counsel of an attorney–and whether he can, and if so should, be classified as an enemy combatant under post-9/11 laws.  Dan Crawford has asked me to post on the Miranda issue, and so I will, along with the somewhat overlapping but distinct enemy-combatant issue, but with the caveat that I have no great expertise in either Miranda-rights law or enemy-combatant law.

These issues concern three provisions in the multi-guarantee Fifth Amendment.  The Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Miranda issue concerns the self-incrimination clause, the clause that reads “nor shall be compelled in any criminal case to be a witness against himself.”  The enemy-combatant issue stems from the lengthy first clause, the one that requires presentment or indictment of a Grand Jury in capital or other infamous crime (now interpreted as all serious crimes, whether or not they’re infamous, although this crime certainly passes the infamy test, so the originalists and textualists should be happy), and also from the due process clause.

Okay, and also from the insistence of certain Republican Senate grandstanders that Tsarnaev be held as an enemy combatant.  At least if issue is an operative word in enemy combatant issue.  Which of course it is.

I’ve read several good news and blog analyses discussing these issues in the last couple of days, but the most comprehensive one on Miranda is a blog post by Orin Kerr (h/t Bill H), a law prof at Georgetown and a former clerk to Justice Kennedy, at The Volokh Conspiracy, a libertarian/right-leaning blog where he writes regularly.  (Kerr is the least right-wing of the several writers there, all of whom are law profs, most of them also former Supreme Court law clerks.)

The essence of Kerr’s post–and a key point made also by Katy Waldman at Slate, in another good article on the subject–is that under Supreme Court jurisprudence dating back about three decades, the issue of the constitutionality of a failure to give a Miranda warning arises only if, and then only when, the prosecution attempts to use the defendant’s pre-Miranda-warning statements at the trial.  Obvious examples are a confession, an acknowledgment that the defendant knows another of the defendants, an admission that the defendant was at a particular location at a particular time, or that the gun used in the crime belongs to him.

It is in some respects–and until now I had thought of it as, in essence–part and parcel of the more generic “exclusionary rule,” which prohibits prosecutors from using evidence at trial that was obtained unconstitutionally.  Usually (but, I believe, not exclusively), the formal exclusionary rule comes into play when evidence is seized in a search that violates the Fourth Amendment’s search-and-seizure provision–a warrantless search that does not fall within the Supreme Court’s seemingly-metastasising exceptions to that constitutional provision (freedom! liberty! originalism! textualism!)

The exclusionary rule was developed by the Supreme Court to effectuate the Fourth Amendment, rather than the Fifth Amendment, but to the extent that I had thought about them at all (which is somewhat, but mainly after a new Supreme Court case on one or the other was issued), I still had thought of them as essentially the same.  But Kerr and Waldman point out that under Supreme Court Miranda jurisprudence, prosecutors can use some tangible “fruits” of an improperly un-Mirandized statement; just not the statement itself; the prosecutor can use the gun that the defendant told them where to find, but the prosecutor cannot tell the jury that the defendant told them where he put the gun.

A more important distinction, though, both in the Tsarnaev case and, well, for you and me, is this: Law enforcement interrogators can ask the defendant questions during an improperly un-Mirandized interrogation but then cannot use the defendant’s statements at trial.  But law enforcement cannot just force their way into your home, or search your car, or search you, in violation of the Fourth Amendment provided that they don’t later try to use what they found as evidence at trial or try after the unconstitutional search to get a search warrant based on the what they found during the unlawful search.

That’s because there is a difference between the very nature of the Fifth Amendment self-incrimination provision and the nature of the Fourth Amendment search provision, according to the Supreme Court.  The Court has interpreted the former as a bar to compelled self-incriminating trial testimony–against being a trial witness against yourself. The Fourth Amendment search clause protects against the actual search, independent of your rights at trial.

I think that’s a distinction that some commentators are missing in the Tsarnaev case, and in light of the unusual specifics of this case, it strikes me as as pretty important.  As in, calm down, fellow civil libertarians.  For now, anyway.

The purposes of most law enforcement interrogations are to try to solve the crime, to obtain enough evidence to gain a conviction, and (often, as part of solving the full crime, including learning its breadth) to identify others who participated in the crime.  In this case, though, there is unequivocally no additional evidence necessary to successfully prosecute Tsarnaev.  They even have the statement from the owner of the hijacked Mercedes SUV that the brothers confessed to him that they were the Marathon bombers–unnecessary icing on a very large, multi-ingredient cake.  They do not need a confession, nor any lesser acknowledgement or admission from Tsarnaev, in order to successfully prosecute him.  Nor to argue for the death penalty.

What they do need is to know with certainty that there are no explosives still stored somewhere, and that there are no other members of their terrorism conspiracy.  Both appear unlikely, it certainly seems.  They probably took all their explosives and guns with them on their wild ride late Thursday and early Friday (they had a lot with them).  The older brother reportedly was strongly disliked among the members of the Cambridge mosque he attended, and Muslim Causas separatists are, reportedly, just that: separatists at war with Russia.  So if the older brother learned his explosive-making craft overseas, it is almost certain that he wasn’t enlisted there to explode bombs at the Boston Marathon.  But law enforcement does need to try to set these issues to rest.

What law enforcement does not need is to try to use un-Mirandized statements by Tsarnaev at his trial.  If the Department of Justice does try, that would be an absolutely unnecessary attempt to distort and stretch Miranda jurisprudence, and the only conceivable purpose would be a decision by Obama (who presumably will be making politically-charged calls in the prosecution) to wave a red flag in the face of civil libertarians, as part of his ever-present quest to be viewed as a “centrist,” and the failure he shares with so many political pundits and other pols to recognize that 2002–like 2010–has passed.

The Marathon bombings are not 9/11.  They are instead the Oklahoma City Federal Building bombing, in which the two perpetrators held radical ideological views that they shared with many others, including members of large loosely-connected groups that advocate violence and that hold deep grudges against the American government.  But those groups, in this case including al Qaeda, likely were not a part of the acts of terrorism perpetrated by the two pairs of perpetrators.

Which brings me to the issue of enemy-combatant status, and of Lindsey Graham et al., who themselves think it’s still 2002 or, more likely, think voters do.  But as Rand Paul can attest, the public doesn’t.  Including much of the Tea Party public.  Even maybe in South Carolina, where Graham hopes to fend off a Tea Party primary challenger.

There are by now enough articles and blog posts published since Friday night, by people with extensive knowledge about enemy-combatant law–which I certainly do not have–that I think I should just say, in summary on this, that, according to those articles, the law does not permit Tsarnaev, a United States citizen charged with committing a crime on United States soil and apprehended not on an overseas battlefield but instead in Watertown, MA, from being declared an enemy combatant.

But to those who insist otherwise, I suggest that they beware of the double-edged sword that they want to manufacture.  Over the weekend, some Republican senator (I don’t remember which one) pronounced the United States “the battlefield”–terminology used by the Supreme Court in their post-9/11 enemy-combatant opinions–because the act terrorism occurred in the United States.  Any act of terrorism in the United States, he claimed, renders the United States a battlefield.

Which in turn requires a definition of “terrorism,” I would think.  And since there is no evidence that the Tsarnaev brothers were connected with any foreign group at all, much less one in which the enemy-combatant statute applies, this senator is proposing, if unwittingly, that anyone accused of, say, using a semi-automatic weapon loaded with a huge magazine could, and should, be declared an enemy combatant.  A designation whose purpose is to strip the defendant of constitutional due process rights and allow permanent detention without trial.

I say, bring it on.  Gitmo for anyone suspected of using a semi-automatic assault rifle with large magazines in the commission of crime!  That’ll have to do in lieu of Gitmo for silly, hypocritical politicians.

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Sorta Interesting … (Updated!)*

Thought y’all would enjoy this post, on one of THE BIG DEAL law-profs’ blogs.  It’s bloggers are right- to center-right libertarians, all (or at least most) of them former law clerks to one of the conservative Supreme Court justices.

Ah. And this is even moreinteresting.  Woo-hoo!

—–
UPDATE: Welll.  Hmmm.  As I said earlier today in a comment in response to JackD’s comment about my post, I was surprised to read the original law-prof blogger’s interpretation of Ginsburg’s weekend comments, because on Monday I had concluded the opposite after reading a quote from Ginsburg’s speech. 

The quote was:

As one may expect, many of the most controversial cases remain pending. So it is likely that the sharp disagreement rate will go up next week and the week after.

As I noted in my comment to Jack, “Sharp disagreement,” in Supreme Court coverage, usually means 5-4 decisions, although sometimes it means “fractured,” as in, there were a zillion separate concurring and dissenting opinions, and no one can actually figure out what the hell the actual result was. 

As I also said, the ACA case, of course, isn’t the only high-profile case the Court will decide in the next 10 days or so.  But I still read that comment as suggesting a 5-4 result in the ACA case.  The CW is that if the ACA is stricken down, it will be 5-4, but that if it’s upheld it will be 6-3.  But Kerr could be right.  Ginsburg might have just been sending out a red herring.  Who knows?  Or: Oh, what the hell.

Ooooh.  This is more nerve-wracking than betting on your Kentucky Derby favorite, who’s no one else’s favorite; your odds are even worse. And there’s no “place” or “show” here.  Unless ….

As I also said in responding to comments to my post—JackD’s and run’s—the impact of the poll I linked to in the last sentence of my post is, I think, that it suggests that, contrary to the CW of the last two years, the healthcare-insurance issue could be a big positive, rather than a negative, for the Dems in November, if the Court does strike down the entire ACA or the mandate part of it.  (And even if it doesn’t, since by the election most people finally will actually know what’s in the law, what’s not in the law, and what the purpose of the mandate is and how it relates to the preexisting-conditions provision.)  The Repubs want the status quo.  The Dems and a substantial majority of the public don’t.

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*In response to a comment by Gary, in the Comments to this post, asking what “CW” is, I wrote:

Conventional wisdom.  I’m sorry.  I did exactly what I hate when other people do that.  Especially mainstream-media bloggers like Matthew Yglesias, who regularly drops names of people I’ve never heard of, and the like, on his blog on Slate.  I guess now I qualify to blog on Slate.    
 
Again, sorry.

Beverly, 6/21

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