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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.

___

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.

____

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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A Key Reason America is No Longer Great: The privatization of state and (especially) local governments, in both the services they provide and in the way these governments (especially the local ones) are funded. [UPDATED.]

Coberly/ July 21, 2016 10:26 am

mike

instead of begging to differ, why don’t you try to explain your case better?

it sounds to me like you are arguing that ignoring traffic violations in black neighborhoods will result in more black on black crime including homicide.

that could well be the case, but i don’t think anyone is suggesting that a lack of normal policing is the answer to police killing black (or white) people who are not posing a threat.

so whatever you are proposing has failed to make itself clear to me.

____

Me/ July 21, 2016 11:15 am

Yup. Just think of all the homicides that have been prevented by the incessant traffic stops of black motorists for a burned-out taillight.

In Michigan, btw, by law you get just a warning for a burned-out taillight or turn signal, since people don’t necessarily even know that the light has burned out. You get the light replaced and mail in or drop off at the courthouse a receipt for the repair within 10 days, and there is no fine.

Which makes a big difference. A huge amount of excessive policing of minor traffic violations, real or fabricated, is the result of conflict-of-interest funding of local government, including and probably principally law enforcement–the police, the courts, the local jails. And the less wealthy you are, the likelier you are to have a burned out taillight or turn signal, because you are likelier to have an older car. Michigan’s law removes this issue.

And the federal government should enact it nationwide–which, in anticipation of a states’-rights/freedom/it’s-unconstitutional push-back, I’ll just say at the outset that it would be clearly constitutional under the Commerce Clause and the Fourteenth Amendment’s equal protection clause and specific authorization in the Fourteenth Amendment’s Section 5.

— An exchange between reader and occasional AB poster (on Social Security) Dale Coberly and me this morning in the Comments thread to Mike Kimel’s controversial July 19 post titled “Interactions Between Black People and the Police

If the public really wants meaningful change and wants to make America great again, one critical component would be to reverse the privatization of what should be, were for most of this country’s history until the Reagan Revolution, and are in virtually every other advanced country, government functions.  And to drastically limit the percentage of government spending that can be paid for by fines for traffic violations and ordinance violations.

And, yes, federal statutes can, within the parameters of the Constitution, be enacted to accomplish these things.

Notwithstanding Freedom and Liberty and states’ and municipalities God-given right to violate individuals’ constitutional rights that have nothing to do with gun ownership, religion, or the purchasing of officeholders via campaign donations or personal-finance donations.*

Really.

*Sentence rewritten for clarity after posting. 7/21 at 5:16 p.m.

____

UPDATE: Comments thread exchanges:

Warren/ July 21, 2016 2:15 pm

“[One] critical component [is] to reverse the privatization of what should be… government functions.”

Such as?

 

J.Goodwin/ July 21, 2016 3:08 pm

Prison management?

 

Me/ July 21, 2016 5:25 pm

Ambulance and firefighter services, for another. Which bill people several thousand dollars a shot.

And entire police departments and court systems and local jails are supported by exorbitant fines and court fees and late fees and this fee and that fee for having gotten a traffic ticket or some such.

Didn’t used to be that way. Used to be that normal taxes paid for these things. Y’know; back when America was great.

 

Lyle/ July 21, 2016 4:26 pm

Note that Ca has a similar thing called a fix-it ticket, that once you get it fixed you drive to a police station have a cop sign that it is fixed and you get the ticket dismissed

The New York Times has been writing a lot on various aspects of this issue, but it’s completely ignored by most candidates for, well, any government office.  Bernie Sanders was the exception, and I think (but I’m not sure) that Elizabeth Warren has discussed some aspects of it, as well.

But Hillary Clinton should discuss it.  It’s tremendously important to many, many people’s lives, and lies at the very heart of much of the blacks-versus-police-and-the-courts issue.  Clinton shouldn’t dodge this.

Added 7/21 at 5:41 p.m.

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Sooo … Akhil Reed Amar and Neal Katyal confuse the IRS and TSA with the FBI. I mean … really, profs??

Update: Link at Scotus blog http://www.scotusblog.com/2013/06/wednesday-round-up-187/.

As prosecutors, police agencies and civil libertarians consider the ruling’s implications, Justice Scalia’s stark dissent — and the fact that President Obama’s two appointees to the court so far agreed with it — makes it worthy of scrutiny, even if he was on the losing side. His argument is deeply flawed, because he did not get his history quite right.

Justice Scalia summarized his scathing dissent from the bench — a rare act that signals sharp disagreement. His opinion opened with these lines: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.

Why the Court Was Right to Allow Cheek Swabs, Akhil Reed Amar and Neal K. Katyal, New York Times,* today

Oh, dear.  Looks like we should all take the Fifth instead of filing income tax returns.  Now that we can no longer take the Fourth.

The referenced ruling, whose implications prosecutors, police agencies and civil libertarians are considering, is yesterday’s 5-4 Supreme Court opinion in a case called Maryland v. King.  Lyle Denniston of SCOTUSblog explains:

Treating the solution of unsolved crimes as a legitimate part of routine police station “booking” procedures, a divided Supreme Court on Monday upheld the power of government at all levels to take DNA samples from every person legally arrested for a “serious” new crime.  What a suspect may have done in the past, the Court majority ruled, is a part of the profile that police may constitutionally begin to assemble at the time of arrest for a separate offense.

Justice Anthony M. Kennedy, writing for a five-four majority, insisted that the ruling in the case of Maryland v. King (docket 12-207) involved little more than what happens when police take a suspect’s fingerprints or mug shot.  But Justice Antonin Scalia, writing for the dissenters, said the Court had validated the use of scientific evidence taken without a warrant not to make an identification but to gather evidence to solve cold cases — something he said the Court has never allowed before.

Whether or not Scalia got his history right, at least he, unlike these these two eminent law professors, recognizes that, as a matter of both fact and the Fourth Amendment, solving an already-committed crime is not the same as requiring the filing of tax returns or thwarting an attempt to carry out a crime.  Or, well, at least until yesterday there was a difference as a matter of both fact and the Fourth Amendment.  Now I guess there’s only a factual difference, not a legal one.

But these two writers think there’s no factual difference. Or maybe they just think Scalia thinks there’s no factual difference.  Or maybe they just didn’t notice the words “for evidence of a crime” in that sentence they quote from Scalia’s dissent: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence.”

Hard to tell.  And rather than clear up that mystery, they just go on to enhance their weird conflation of past and present, and of crime and regulatory compliance:

Justice Scalia failed to identify even one source from the founders articulating the ultraprecise rule that he claims is the central meaning of the Fourth Amendment. And his version of the Fourth Amendment would lead to absurd results.

The government, for example, permits searches at the border to prevent contaminated livestock and plants from entering the country — is such authority permitted only because these searches are not seeking “evidence of crime?” If so, if what happens if the government at some point criminalizes the intentional introduction of diseased animals and vegetables? Why should these searches magically now become unconstitutional?

The title of Denniston’s piece is “Opinion recap: Solving ‘cold cases’ made easier.”  Maybe that refers to handling of refrigerated containers of meat and produce by the Border Patrol and the Agriculture Department.

What exactly is the ultraprecise rule that Scalia claims is the central meaning of the Fourth Amendment?  That livestock and plants trying to enter the country should be forced to submit to a DNA swab in case they plan to violate the tax code when they file their tax returns with the IRS? That certainly is ultraprecise.  Not to mention deeply flawed and historically inaccurate. As is the claim that a statement that the Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence has anything to do with mandatory filing of tax returns, or airport security, or livestock and plants crossing the border.

My own reaction to the opinion was more along the lines of revulsion than relief that the country’s food supply will continue to be relatively safe from foreign contamination; that I won’t be planting poison tomato seeds imported from Timbuktu; and that Mitt Romney and the Koch brothers won’t have new Fourth Amendment grounds for tax avoidance.  And judging from similar sentiment expressed overwhelmingly in comments threads I’ve read about it, I think this opinion will prove to be the Fourth-Amendment/criminal-law Citizens United–a watershed moment of awareness of the chasm between the Supreme Court justices who think it’s forever the days of the Reagan presidency and the substantial majority of the public who think it’s 2013.

Yes, the Fourth Amendment’s text merely requires that all searches and seizures be not “unreasonable.” Which itself is a distinction between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.  Or so I and others, including Scalia, Ginsburg, Sotomayor and Kagan, had thought.

Then again, Amar and Katyal must know what they’re talking about.  They’re eminent law profs, after all, who by virtue of their eminence get anything they submit published anywhere they submit it.

Anything they submit. Even this.

 ===

*“Akhil Reed Amar is a professor of law and political science at Yale. Neal K. Katyal is a former acting solicitor general of the United States, a professor of national security law at Georgetown and a partner at the law firm Hogan Lovells.

 

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