Babies are seized from their mothers’ arms. Photographs show their anguish. News reports describe their cages. A recording captures their wailing and a U.S. border official’s cold mockery. A defiant President Trump falsely blames others for the misery he created.
And Republican lawmakers respond as they often have: They hold another hearing about Hillary Clinton’s emails.
But they have run this play too many times before.
.. Just 29 seconds into Tuesday’s hearing on the defeated Democratic 2016 presidential nominee and her emails, Rep. Jerrold Nadler (N.Y.), top Democrat on the Judiciary Committee, interrupted to point out that something more important needs attention.
.. “They are children who have been forcibly removed from their parents in our name.”
Republicans on the committee tried to silence Nadler with calls of “order!”
Nadler spoke over them: “The United States should be better than this. We should not put children in cages.”
“Regular order!” called out Rep. Bob Goodlatte (R-Va.), chairman of the Judiciary Committee.
.. Ah, so it’s “regular order” to have the umpteenth hearing about a now-private citizen’s emails, but you’re “pulling” a stunt if you talk about the Trump policy under which border guards are reportedly telling parents they are taking children “for a bath” and the children never return.
No, Republicans, your “regular order” is out of order.
.. As soon as Gowdy had silenced Nadler, two women in the back of the room, with infants in their laps, began to heckle the lawmakers about the inhumanity of Trump’s family separation policy.
Gowdy slammed the gavel to the dais and demanded that the mothers and babies be removed. (At least the Capitol Police had the good sense not to take the babies from the mothers.) “We will be in recess until the Capitol Police restore order!” Gowdy proclaimed.
But “order” remained elusive.
.. Shortly after the moms and babies were evicted from the room, Rep. Elijah E. Cummings (Md.), top Democrat on the Oversight Committee, spoke. “Are we really going to sit here, 70 members of the Congress of the United States of America, in 2018, and have a hearing . . . on Hillary Clinton’s emails?”
.. “We should be able to agree that we will not keep kids in child internment camps indefinitely and hidden away from public view. What country is that? This is the United States of America! We now have reports of parents being deported, but the Trump administration is keeping their children here.”
.. Unhappy that Clinton wasn’t charged in 2016 for mishandling her emails, they had demanded an investigation into the original investigation of Clinton. That investigation, conducted by Justice Department Inspector General Michael Horowitz, last week reported misconduct by some officials but “no evidence that the conclusions by the prosecutors were affected by bias or other improper considerations.”
.. Now Republicans, still unsatisfied, are threatening to investigate the investigation of the investigation of Clinton. Senate Republicans hauled Horowitz in Monday, and House Republicans hauled him in Tuesday, to field questions for seven hours from 70 lawmakers
.. they care more about a scrubbed server than a clean conscience.
Why not, then, appoint another special counsel to squeeze the squeezers? Why not turn the tables?
.. Deputy Attorney General Rod Rosenstein made a foundational error in appointing Robert Mueller to be special counsel to investigate . . . well . . . um . . . come to think of it, that was the error: The investigation has no parameters, and thus no limitations.
Investigations conducted by prosecutors are supposed to be rooted in known crimes — or, at the very least, articulable suspicion that known crimes have occurred.
those crimes must form the basis for two salient findings:
(1) that the Justice Department has a conflict of interest so severe that it cannot conduct the investigation in the normal manner, and
(2) that it is necessary to appoint, from outside the Justice Department, a quasi-independent prosecutor.
.. This special prosecutor is to be given a grant of investigative jurisdiction limited to the crimes that the Justice Department is too conflicted to investigate — and no other crimes, unless the special counsel explicitly requests, and the Justice Department grants, an expansion of jurisdiction.
.. Because counterintelligence is not lawyer work, and because the objective of counterintelligence is to gather information about a foreign power, not to build a criminal case against a suspect, prosecutors are not ordinarily assigned to counterintelligence investigations.
.. In the Mueller appointment, then, counterintelligence is camouflage for something that should never happen: a special counsel unleashed to hunt for crimes to prosecute despite the absence of known crimes warranting appointment of a special prosecutor.
.. is looking into whether Jared Kushner’s financial woes influenced Trump-administration policy towards Qatar.
.. Where I part company with them is not over whether we need an investigation; it is over whether that investigation should be done by a special counsel.
.. The patent flaw in the Goodlatte-Gowdy proposal is the same one that plagued Rosenstein’s appointment of Mueller: There is no triggering crime.
.. Investigative Excesses Are Usually Not Crimes
It is very bad for investigators to exhibit bias, to allow bias to taint their exercise of investigative and prosecutorial discretion, to depart from Justice Department guidelines, and to provide unverified information to the Foreign Intelligence Surveillance Court (FISA court). But none of these things is a crime – at least, not obviously so.
.. There is no criminal statute addressing bias on the part of agents and prosecutors. We all have biases. It would not be possible to have bias-free investigators.
.. But if deviations from guidelines were to become a basis for legal action, including criminal prosecution, one of two things would happen: The guidelines would be repealed, or they would be rewritten in a broadly permissive manner, endorsing investigative behavior that might be justifiable in exigent circumstances but would be grossly inappropriate the rest of the time.
.. If police and prosecutors came to believe enforcement errors would lead to prosecutions or civil lawsuits against them, they would refrain from taking any but the most uncontroversial enforcement actions. In another context, Heather Mac Donald has written compellingly about this phenomenon as “the Ferguson effect.” To discourage policing is to erode the rule of law, imperiling societal peace and prosperity.
.. If there was a good-faith basis for the FBI and Justice Department to investigate possible Trump–Russia ties of a corrupt nature, it would be very difficult to prove that investigators broke the law in conducting their investigation
.. Candidate Trump made alarmingly ingratiating statements about Vladimir Putin
.. Trump brought Manafort and Gates into his campaign at a very high level. They had notorious ties to Kremlin-backed Ukrainians. Those ties are not speculation; they are established fact. Moreover, Trump publicly identified Carter Page, an obscure Kremlin apologist, as one of his campaign’s handful of foreign-policy advisers. Simultaneously, the FBI was alerted that the Russians might be in possession of thousands of hacked emails damaging to Hillary Clinton, and might have made a point of communicating this claim to George Papadopoulos, another of the few identified Trump foreign-policy advisers.
.. Then the bureau was approached by Christopher Steele. Far from being unknown to the FBI, this former British spy was a proven asset, having provided information that helped the bureau crack the FIFA soccer case
.. Steele alleged that Trump was involved in a corrupt conspiracy with Russia, in which Manafort, the point man, was using Page as an intermediary. Because of his prior work with the bureau, Steele would not have been ignored by the FBI, regardless of the Clinton campaign’s sponsorship of his work
.. given the preexisting reasons for concern: Trump’s pro-Putin rhetoric; the backgrounds of Manafort, Gates, and Page; and the report about possible Russian involvement in hacked Democratic emails.
.. It would not be credible to claim that the Trump-Russia investigation was fabricated out of whole cloth. Even stipulating that the top FBI/DOJ hierarchy was biased against Trump, and thus too quick to credit sensational allegations of Trump wrongdoing, there were good-faith reasons for concern about ties between the Trump campaign and the Russian regime. These reasons do not prove that Russia was behind the hacking of Democratic emails; that Carter Page was a Russian agent; that Manafort and Gates were choreographing a Trump–Russia conspiracy; or that Trump’s Russia rhetoric was anything more than a political novice’s effort to do what American administrations have been doing for decades — seek better relations with Moscow.
.. Goodlatte and Gowdy are also right to suggest (as I believe they have) that the contemplated investigation should scrutinize the handling of the Clinton-emails probe
.. The special counsel is a pernicious institution that operates outside the procedures and discipline of a normal U.S. attorney’s office — where the merits of every case must be weighed against those of every other in the competition for limited investigative and prosecutorial resources.
.. Attorney General Sessions should assign a U.S. attorney from outside Washington to conduct a probe of how the Clinton-emails and Trump-Russia investigations were handled by the Justice Department and FBI. A good model would be John Durham, the U.S. attorney for Connecticut just confirmed by the Senate.
.. the Bush administration was cut no slack by Fitzgerald, then a career prosecutor who is remembered for conducting a hyper-aggressive probe.
.. Mueller is effectively independent only because Rosenstein has chosen to be passive
.. Mueller reports to Rosenstein, who could assert more active supervision.
.. There is no reason that Attorney General Sessions cannot structure a probe that can be credibly conducted by the Justice Department’s standard investigative arrangement
White House Chief of Staff John F. Kelly told Democratic lawmakers Wednesday that some of the hard-line immigration policies President Trump advocated during the campaign were “uninformed,” that the United States will never construct a wall along its entire southern border and that Mexico will never pay for it, according to people familiar with the meeting.
The comments were out of sync with remarks by Trump, who in recent days has reiterated his desire to build a border wall that would be funded by Mexico “indirectly through NAFTA.”
.. “Certain things are said during the campaign that are uninformed,” Kelly said.
“One thing is to campaign, another thing is to govern. It’s really hard,” he added later, according to attendees.
“A concrete wall from sea to shining sea” is not going to happen, Kelly said. Instead, “a physical barrier in many places” is what the administration is requesting. Kelly used the term “physical barrier” several times during the meeting, attendees said.
.. Instead, “we need 700 more miles of barrier,” Kelly said — a concession that a physical barrier does not need to stretch the entire length of the border.
.. “Concrete wall would be good in only certain places,” he added, saying that manpower and drone technology should suffice in some parts.
.. Kelly also said that there will be no wall “that Mexico will pay for.”
.. “In one way or another, it’s possible that we could get the revenue from Mexico, but not directly from their government,” he said.
.. “Drug cartels will always find a way to get their drugs in so long as there’s demand in the U.S.,” Kelly said.
.. Kelly seemed unimpressed by the deal, attendees said, telling the group that Graham and Durbin have always agreed on immigration matters. What would be more impressive, Kelly suggested, is if Hispanic Caucus members worked with conservatives like Sens. Tom Cotton (R-Ark.) and David Perdue (R-Ga.) and Rep. Bob Goodlatte (R-Va.), the chairman of the House Judiciary Committee, who introduced a conservative-backed proposal on immigration reform last week.
Mr. Trump’s response was something altogether different. He didn’t condemn these Republicans for defying and undermining his drain-the-swamp pledge. He asked them to address more urgent business first, like destroying health care reform and passing tax cuts for the rich. Indeed, while he was tweeting on Tuesday morning, Kellyanne Conway, the incoming counselor to the president, had already been on television supporting Mr. Goodlatte and his gang, saying House Republicans had a “mandate” to curb “overzealousness” over ethics.