Corruption In The Eye Of The Beholder

An awful lot of people you might have once thought were sane have worked themselves into a lather the last few days over the testimony of Jim Comey supposedly revealing "obstruction of justice" by President Trump.  Hey, that's a crime!  On to impeachment!

There are probably a hundred or more instances of this out there, but I'll focus on the Washington Post and New York Times, since they seem to be the authoritative origin of the official talking points for the progressive media and blogosphere.  In the Post it's "Comey lays out the case that Trump obstructed justice."  

A Senate committee on Thursday heard former FBI director James B. Comey essentially lay out an obstruction of justice case against President Trump as he highlighted critical encounters that will be part of any evaluation of whether Trump committed a crime.  There was evidence of possible intent: when the president cleared the room so he could ask Comey — without the attorney general or his son-in-law present — about the investigation into former national security adviser Michael Flynn’s contacts with Russian officials after the 2016 election.   There was the suggestion of quid pro quo: when Trump repeatedly raised the status of Comey’s job as he asked for loyalty.  And there was the consequence: when Comey, having not steered investigators away from Flynn, was fired by Trump in May, long before the end of his 10-year term.

Or consider, from the New York Times, "Trump, Comey, and Obstruction of Justice: A Primer."

The testimony by the former F.B.I. director James B. Comey that President Trump, before firing him last month, demanded loyalty, urged him to drop the investigation into his former national security adviser and pressed him to “lift the cloud” of the Russia inquiry is fueling accusations that the president obstructed justice.

Would you think that, before they would plaster this kind of thing all over their front pages and lead editorials, our seemingly authoritative media would have at least a teensy clue what they were talking about?  Don't bet on it.  The Post, Times, et al., seem to be completely unaware that under our Constitution (Article II, Section 1), the "executive Power" is "vested" in the "President of the United States of America" -- and in nobody else.  The "executive Power" includes the power to prosecute for all crimes, and also includes the function of prosecutorial discretion.  The Attorney General and FBI Director hold none of this power on their own, but only by delegation from the President.  The President has the absolute right and authority to direct them to use the prosecutorial powers as he sees fit.  He has the clear constitutional authority to direct that any prosecution be ended, or to pardon the target, or to fire any and all of the prosecutors.  So how could any of that possibly be "obstruction of justice"?  

There is literally only one person on the left side of the political divide -- law professor Alan Dershowitz -- who seems capable of uttering these simple truisms and of trying to keep his fellow travelers from making utter fools of themselves.  Dershowitz published an op ed in the Washington Examiner on Thursday stating some of the obvious:

The president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute. Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person. . . .  The Comey statement suggests that one reason Trump fired him was because of his refusal or failure to publicly announce that the FBI was not investigating Trump personally. Trump "repeatedly" told Comey to "get that fact out," and he did not.  If that is true, it is certainly not an obstruction of justice.

All I can say is, there sure seem to be an awful lot of people with a gigantic level of outrage over conduct that couldn't possibly more clearly legal and authorized and constitutional.  

And now, can we talk about some conduct of the government that is (or was) equally clearly illegal and unauthorized and unconstitutional?  I'm talking about the practice of the prior administration of shaking down banks and industrial companies for multi-billion dollar settlements and then passing out the loot to political friends and supporters of the administration, to be used for the political advantage of the Democratic Party and its allies, including voter registration and voter outreach efforts.  The Wall Street Journal had a good roundup of the bank side of the scam back in August 2016, headline "Look Who's Getting That Bank Settlement Cash."  

Imagine if the president of the United States forced America’s biggest banks to funnel hundreds of millions—and potentially billions—of dollars to the corporations and lobbyists who supported his agenda, all while calling it “Main Street Relief.” The public outcry would rightly be deafening. Yet the Obama administration has used a similar strategy to enrich its political allies, advance leftist pet projects, and protect its legacy—and hardly anyone has noticed.  The administration’s multiyear campaign against the banking industry has quietly steered money to organizations and politicians who are working to ensure liberal policy and political victories at every level of government. . . . 

Combined, the [settling] banks [including Goldman Sachs, Citigroup, J.P. Morgan Chase, Morgan Stanley and Bank of America] must divert well over $11 billion into “consumer relief,” which is supposed to benefit homeowners harmed during the Great Recession. . . .   [A] substantial portion is allocated to private, nonprofit organizations drawn from a federally approved list. Some groups on the list—Catholic Charities, for instance—are relatively nonpolitical. Others—La Raza, the National Urban League, the National Community Reinvestment Coalition and more—are anything but.  This is a handout to the administration’s allies. Many of these groups engage in voter registration, community organizing and lobbying on liberal policy priorities at every level of government.

None of the handouts to the prior administration's political supporters was made the subject of an appropriation by Congress.  They took the billions of dollars of settlement money, put it in a slush fund, and passed it out to their friends as they saw fit for political advantage.  Is it possible to imagine a clearer case of extreme corruption?

And does the Constitution have anything to say about this?  That would be Article I, Section 9:  "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . . ."  

Well, now new Attorney General Jeff Sessions is putting an end to this practice.  From the front page of today's New York Times, "Settlements for Company Sins Can No Longer Aid Other Projects, Sessions Says."    

Attorney General Jeff Sessions, in a memo issued this week, directed the Justice Department to no longer include funding for projects managed by outside groups in settlements with corporate wrongdoers. The settlement money will instead go exclusively to the federal Treasury or to victims of the company’s actions, Mr. Sessions said.

Do you expect there to be a little outrage here about money belonging to the taxpayers being passed out to left-wing interest groups for political purposes, in the face of a specific constitutional prohibition?  Hey, this is Pravda.  They go and seek out reactions from a few environmental lawyers:

“You’re killing something that’s worked really well — which is getting violators who’ve broken the law, in some cases in a criminal way, to agree to fund projects to make the air or water cleaner,” said Eric Schaeffer, executive director of the Environmental Integrity Project and the former director of civil enforcement at the Environmental Protection Agency. “What’s wrong with that?” . . .  Frank Holleman, a senior lawyer for the Southern Environmental Law Center, said that if settlement money for environmental violations goes to the Treasury Department, it may be spent on something else, and prevent restoration of or protection of an affected community or ecosystem.

Don't try to look for any kind of unifying constitutional theory in the positions being taken here.  It's only about momentary advantage in the political fray.  We get the money!  You go to jail!  Constitution?  What's that?

UPDATE, June 11:  RealClearPolitics links this morning to a particularly unhinged example of a constitutional ignoramus, Fred Kaplan of Slate.  The article is headlined "What Trump Doesn’t Know Will Hurt Us: The GOP excuse about Trump’s ignorance will lead America to disaster."

House Speaker Paul Ryan tried to excuse the most incriminating portions of Comey’s statement—the highly detailed claims that Trump pressured him to swear loyalty, to drop the probe of Michael Flynn, and to tell the public that Trump himself was not under criminal investigation—by saying that the president is “just new to this.” In other words, Ryan was saying, Trump isn’t a crook; he’s just ignorant. . . .  So these are the GOP’s rationales for Trump’s behavior: He was only talking like a felon, he didn’t necessarily commit a crime; and if he did, it’s only because he didn’t know what he was doing.

Fred, I highly recommend that you not take your constitutional law from the political writers at the Washington Post and New York Times.  You might try reading the document itself, which is not long.  The relevant provision is only one sentence of 15 words.