Category Archives: Criminal Justice

P.S.

Yesterday, in addition to the post I planned to share, I accidentally posted what was meant to be today’s blog, about the FBI search of Mar-a-Lago–so today, I’ll just follow up by pointing to some of the rather obvious holes in Trump’s howls about being the focus of a “witch hunt.” (Actually,  witches are female–if this investigation really was just political theater, it would be a “warlock” hunt. But I digress.)

Heather Cox Richardson, among others, has joined those reminding folks that federal search warrants require the sign-off of a judge who–after reviewing the evidence provided by prosecutors–agrees that there is substantial probable cause to believe both that a crime has been committed and that a search will provide evidence of that crime.

She also reminded readers that, although the FBI cannot legally release such search warrants, the individual targeted  for the search must be given a copy, and is free to release it. If this were truly  a “warlock hunt”  and the search warrant was evidence of the absence of probative probable cause supporting the search, you can be sure Trump would have released it .

Legal analysts have pointed out that the law also requires the FBI to give Trump an inventory of what they found and confiscated–and according to several reports, agents removed ten boxes of materials found during the search. Those ten boxes were in addition to the fifteen boxes that Trump formerly returned after repeated demands from federal archivists. Trump could also release that inventory if it bolstered his claim that he is being unfairly targeted.

Trump’s retention of all these materials was a clear violation of federal law–but just as clearly, violating federal records law would not have been considered a sufficient violation to support the issuance of a search warrant for a former President’s residence.

Whatever the suspected crime, it ‘s clearly far more serious.

As usual, there has been an unhinged response from the “law and order” Right. As The Washington Post reported,

For months, right-wing agitators with millions of followers have peddled the idea that a moment was coming soon when violence would become necessary — a patriotic duty — to save the republic.

With the FBI search Monday of Donald Trump’s compound in Florida, that moment is now, according to enraged commentators’ all-caps, exclamation-pointed screeds urging supporters of the former president to take up arms. Within hours of the search at Mar-a-Lago, a chorus of Republican lawmakers, conservative talk-show hosts, anti-government provocateurs and pro-Trump conspiracy theorists began issuing explicit or thinly veiled calls for violence.

“Today is war. That is all you will get on today’s show,” right-wing podcaster Steven Crowder announced Tuesday to his nearly 2 million followers on Twitter, referring to the program that goes to his YouTube audience of 5.6 million.

Robert Hubble’s daily letter addressed that hysteria, and the media’s widespread coverage of Trumpist rage. He reminded readers that–despite the avalanche of threats of violence and even civil war on Twitter and other social media platforms –the people leveling those threats represent a small percentage of the American public.

The Post was less sanguine.

If the goal is to normalize vigilante violence as a political response, studies show that the tactic seems to be working.

A recent Washington Post-University of Maryland poll found that about 1 in 3 Americans say they believe violence against the government can at times be justified, the largest share to feel that way in more than two decades. Other studies similarly have found a growing tolerance of violent ideologies that historically were confined to fringe elements.

Hubble wasn’t recommending that we dismiss the threats. As he conceded,

The reaction on the right is serious because of what it says about the unraveling of the Republican Party. The outlandish and unhinged threats (including calls for secession, civil war, dissolution of the FBI, and gutting of the DOJ) show that the Republican Party is opposed to the rule of law and the institutions of state necessary to maintain peace and security. In their opposition to the federal government, Republicans are deadly serious and dangerous—whether Trump wins in 2024 or not.

I am confident that Garland did not err in choosing to execute a search warrant rather than issuing a subpoena. Indeed, given his overly cautious nature, my belief—rank speculation, I admit—is that Trump removed documents vital to national security or military alliances that could be devastating if they fall into the wrong hands.

Every Republican rallying to Trump’s defense must be secretly thinking, “Oh, God! What did he do? I hope it isn’t really bad!” Trump could dispel some of that uncertainty by releasing the search warrant—an omission that must be ominous for Trump’s defenders.

As I said yesterday, stay tuned……

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About That FBI “Raid”

The “usual suspects” are pontificating and Democrats are engaging in what appears to be enjoyable speculation. (Trump has been selling state secrets to the Saudis/Russians/Extra-terrestrials…)

We don’t know.

In fact, we wouldn’t know that the FBI had executed a search warrant at Mar-a-Lago had his Orangeness not begun fundraising off his own announcement of the search. What we do know is that this wouldn’t have occurred absent a really well-documented belief that serious lawbreaking had occurred.

As Josh Marshall recently put it at Talking Points Memo: 

The best assumption is the obvious and initial one: we’re dealing with three key players (Garland, Wray and a federal judge) each of whom would bring a distinct and deep-seated resistance to taking such a step absent evidence of serious criminal conduct and specific circumstances which made the need for a surprise search compelling and necessary. That strongly suggests that there is more afoot here than we yet know.

I will note again what I referenced last night. If you read the reports from the biggest national news organizations what is most striking is how little they seem to know. They believe it’s tied to the 15 box document retention investigation which goes back like a year. But even that seems vague and they don’t seem to know much more. As I said above, this isn’t our first rodeo. Usually after an event like this the most sourced reporters are able to put together a pretty full picture pretty quickly. But that doesn’t seem to be happening. At least not based on the stories I’ve read. That speaks to an extreme secrecy uncommon even in the most delicate and politically-charged investigations.

The Wall Street Journal  notes that authorization for the raid required approval of the “highest echolons” of the Justice Department. 

Before the FBI search, a federal magistrate would have approved a warrant for FBI agents to search the property, indicating investigators may have believed there was additional classified information at the location.

The search also would likely have required signoff from the highest echelons of the Justice Department, including Attorney General Merrick Garland, who was appointed by President Biden, and Christopher Wray, the FBI director appointed by Mr. Trump in 2017, current and former department officials said. A Justice Department spokeswoman declined to comment Tuesday. Mr. Garland has said little publicly about any of the Justice Department’s Trump-related investigations other than noting to reporters that no one is above the law.

One of the most pointed descriptions of the FBI’s execution of its search warrant came from Wired, which reported:

Monday’s search of the former president’s Mar-a-Lago property in Florida was surely one of the most significant, sensitive, and politically explosive actions the US Justice Department and FBI have ever taken. It’s one of a tiny handful of times the DOJ has ever investigated a president. And it’s an action that likely indicates the FBI and prosecutors had specific knowledge of both a definable crime and the evidence to back it up.

 The actual search warrant, which would list specific crimes being investigated, has not been released yet. According to Monday night news reports, however, the search focused on questions about a number of boxes of classified documents that Trump took from the White House to his Florida mansion after leaving the presidency.

While it may take months to learn more about the underlying investigation, the fact that the FBI launched such a high-profile search already tells us a great deal about the state of the Justice Department’s case.

 Federal search warrants aren’t fishing expeditions. The FBI’s warrant had to be approved  at the highest level of both the FBI and the Justice Department, and approval would have required substantial evidence of probable cause. The Journal acknowledged that previous FBI scandals have made the bar for probable cause and sign-off by the department’s upper levels even higher.

The Justice Department’s 2016 decision not to prosecute Hillary Clinton for her sloppy handling of classified materials as secretary of state raises the bar for any prosecution stemming from Trump’s handling of classified documents….which means that in order to pursue this Trump investigation, there would have to be more serious (and criminal) concerns than there were in the investigation of Clinton.

 Thus, we’re left with the big question the FBI is ultimately trying to investigate right now: Who would have benefited from Trump taking home these particular documents—and why?

As the Wired article concludes :

Wray, Garland, and Deputy Attorney General Lisa Monaco have made it clear throughout their careers and public statement that they are institutionalists. Far from being aggressive, partisan investigators, all three have shown themselves over the past 18 months to be reserved, careful, and legally and evidentiarily conservative.

The bottom line of Monday’s search is that the FBI and the Justice Department must have been inordinately clear that they had the goods—and someone’s legal trouble is just beginning.

Stay tuned…

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History Versus Mythology

Speaking of history…

Over the past few years, I’ve read a lot of American history–most of which I hadn’t encountered in high school or college history classes. (One unfortunate result is that I no longer get goose bumps when I hear the national anthem; the people opposing the teaching of accurate history aren’t entirely wrong about its potential to dampen jingoism…)

Accurate history can be depressing, but grown-ups can deal productively with the gap between the country’s values and aspirations and our past failures to live up to them. As I argued yesterday, understanding actual history allows us to address the inaccurate mythologies that continue to warp contemporary political discourse.

In a recent essay for The Conversation, my friend Pierre Atlas–a political scholar, gun owner and NRA member who stresses he hasn’t donated to the organization since 1997– examined effects of  widely-accepted myths about the Old West on today’s policy debates. I encourage you to click through and read the article in its entirety, but I’m sharing passages I found particularly illuminating.

Pierre began by recognizing the partisan divide over “gun rights” and the effect of that divide on the recently passed–and widely hailed–“bipartisan” gun legislation.

In the wake of the Buffalo and Uvalde mass shootings, 70% of Republicans said it is more important to protect gun rights than to control gun violence, while 92% of Democrats and 54% of independents expressed the opposite view. ..

In order to attract Republican support, the new law does not include gun control proposals such as an assault weapons ban, universal background checks or raising the purchasing age to 21 for certain types of rifles. Nevertheless, the bill was denounced by other Republicans in Congress and was opposed by the National Rifle Association.

What is the wellspring of this widespread gun fetish?

My analysis finds that gun culture in the U.S. derives largely from its frontier past and the mythology of the “Wild West,” which romanticizes guns, outlaws, rugged individualism and the inevitability of gun violence. This culture ignores the fact that gun control was widespread and common in the Old West…

Americans have owned guns since colonial times, but American gun culture really took off after the Civil War with the imagery, icons and tales – or mythology – of the lawless frontier and the Wild West. Frontier mythology, which celebrates and exaggerates the amount and significance of gunfights and vigilantism, began with 19th-century Western paintings, popular dime novels and traveling Wild West shows by Buffalo Bill Cody and others. It continues to this day with Western-themed shows on streaming networks such as “Yellowstone” and “Walker.”

Historian Pamela Haag attributes much of the country’s gun culture to that Western theme. Before the middle of the 19th century, she writes, guns were common in U.S. society, but were unremarkable tools used by a wide range of people in a growing nation.

Pierre explores the effects of gun-makers’ PR campaigns, which romanticized guns and their role in the settling and taming of the West. Contrary to that invented mythology, he found that–while gun ownership was common– actual gunfights were rare, and that many frontier towns “had strict gun laws, especially against carrying concealed weapons.”

As UCLA constitutional law professor Adam Winkler puts it, “Guns were widespread on the frontier, but so was gun regulation. … Wild West lawmen took gun control seriously and frequently arrested people who violated their town’s gun control laws.”

“Gunsmoke,” the iconic TV show that ran from the 1950s through the 1970s, would have seen far fewer gunfights had its fictional marshal, Matt Dillon, enforced Dodge City’s real laws banning the carrying of any firearms within city limits.

Pierre notes that NRA hardliners are willing to accept gun violence as an inevitable side effect of a free and armed but violent society. Their opposition to new gun reforms as well as the current trends in gun rights legislation – such as permitless carry and the arming of teachers – are but the latest manifestations of American gun culture’s deep roots in highly inaccurate frontier mythology.

Wayne LaPierre, executive director of the National Rifle Association, the country’s largest gun rights group, tapped into imagery from frontier mythology and American gun culture following the Sandy Hook massacre in 2012. In his call to arm school resource officers and teachers, LaPierre adopted language that could have come from a classic Western film: “The only thing that stops a bad guy with a gun is a good guy with a gun.”

Recent studies actually show that giving those “good guys” concealed carry permits is linked to 13-15 percent higher violent crime rates–and accurate history confirms that the only thing that can stop a bad guy with a gun is rational gun regulation.

Those shoot-em-up Westerns were fun when we were children, but it’s past time for Americans to grow up.





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A Good Teacher With A Gun….

Jennifer Rubin published a recent column that zeroed in on two aspects of American fatuousness: the Republican office-holders who, with a straight face, are advocating arming teachers, and the “journalists” (note quotation marks) who fail to ask them the follow-up questions that would immediately show how utterly stupid and dishonest that suggestion really is.

Rubin quoted the Secretary of Education, who enumerated several of those questions.

Those are some of the stupidest proposals I’ve heard in all my time as an educator,” he said on “The View” on Thursday. “Listen, we need to make sure we’re doing sensible legislation, making sure our schoolhouses are safe as much as possible.” He then mused about how arming grade-school teachers would work in practice. “What happens when a teacher goes out on maternity leave? Are we going to give the substitute of the day a gun?” Hmm.

Sort of like those proposals to lock all the doors–in violation of fire regulations. I guess it’s okay for the kids to burn to death if you are protecting them from gunslingers…

In fact, a lot of questions come with such a plan. For example: Should teachers sport their AR-15s when they have bus duty or lunchtime duty? Where do they store these weapons of war? In a locked case? Should the gun be loaded and ready to fire?
How could a civilian teacher access a secured gun quickly enough to take down an armed murderer? If you are going to arm teachers, should we outlaw the body armor that many shooters wear? Since 18-years-olds should be able to buy AR-15s, according to Republican lawmakers, why shouldn’t they be armed in high schools?

We can all think of others. And as Rubin notes, it is highly unlikely that Republicans actually want to arm the same teachers who they insist are indoctrinating kids into critical race theory and “grooming” them for homosexuality.

She makes another important point: where are the media interrogators who will ask those questions to the people proposing these dimwitted ideas.

 Interviewers rarely press Republicans to explain their bad-faith arguments. Instead, the media often treat ridiculous ideas respectfully and move on without follow-up questions. Perhaps TV hosts should start inviting these Republicans to discuss their ideas at length.

Until Republicans are forced to confess that their ideas would be impossible to implement, they’ll keep changing the subject and deflecting demands for gun legislation.

It is absolutely impossible to blame America’s continuing and escalating gun violence on anything other than the enormous stockpiles of guns in this country. Every other nation on earth has people who are mentally ill, people who are “bad actors,” people who play video games and people who don’t go to church–the usual scapegoats identified by legislators who don’t want to even consider keeping guns developed for the armed forces out of the hands of 18-year-olds.

What those safer countries don’t have is millions of guns and repeated mass shootings.

A FaceBook friend recently posted one of those inane memes–this one from crazy Clint Eastwood–insisting that the problem is not guns, it’s “hearts without God, homes without discipline, schools without prayer, courts without justice.” My oldest granddaughter, who lives in northern England, nailed it, replying:

Yeah, here in the UK we have plenty of schools without prayer, most people are not religious and owning a gun is very difficult. We have no school shootings. 100% it’s the guns.

What is so maddening is that everyone really knows that. Our sniveling, spineless legislators know it. The American public overwhelmingly knows it. Seventy-four percent of voters support raising the age to buy an assault weapon–and so do 59 percent of Republicans, according to the latest Quinnipiac University poll. Universal background checks are supported by 92 percent of Americans. And this isn’t just some spike in the survey research, triggered by the horrifying, continuing carnage–majorities have supported common sense restrictions like these for years, and the Ted Cruzes and Steve Scaleses of the political world know it.

No one on the “left” (i.e., anyone who wants government to exercise a modicum of control that would make the carnage abate) is proposing to confiscate people’s guns ( with the possible exception of the AR-15). We just want common-sense regulations of the sort that other free and democratic countries have had for years.

We want those sniveling legislators to respect us enough to stop offering pious bromides (“thoughts and prayers”) and moronic proposals (“arm the teachers”). And we want real reporters who will ask these embarrassing excuses for legislators the hard, follow-up questions.

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Some People Shouldn’t Be Parents

Not long after I joined the faculty at IUPUI’s School of Public and  Environmental Affairs (now the O’Neill School), I had a student whose answer to virtually every thorny policy issue we discussed was the same: license people before allowing them to become parents.

This was in an upper-level undergraduate class in Law and Public Policy, and the student’s “day job” was as a probation officer. (Like a significant percentage of undergraduate students at IUPUI back then, he was older than traditional college students, and had a full-time job.) Each time, I would patiently explain why the Bill of Rights prevents government from making so personal a life choice for individual citizens, and he would respond to the effect that such a constraint was unfortunate, because he saw the results of bad or inadequate parenting on a daily basis.

As I reflect on those discussions, I’ve concluded that we were both right.

It should be obvious that the decision whether to procreate is not a decision that government in a free society can or should make. (Speaking of obvious–someone needs to  forcefully remind six Justices on our current, politicized Supreme Court just why liberty requires procreation decisions to be left to the individuals involved .) But my student wasn’t wrong when he pointed out that some people simply should not be parents.

I thought about that student, and those long-ago discussions he initiated, when I read reports about the utterly unfathomable conduct of the parents of Ethan Crumbly, the young man who killed four classmates and wounded seven others in Michigan. Per CNN, we learned that the parents have been charged along with their son after they failed to appear for their arraignment, withdrew 4,0000 from an ATM, and hid out in a warehouse some 40 miles from their home in an apparent effort to flee.

The judge has set their bail at 500,000 each.

Parents of a school shooter are almost never charged, even when their negligent storage of weapons is implicated in a shooting. But these parents are–as my students might put it–something else.

Oakland County Prosecutor Karen McDonald has alleged that James Crumbley on November 26 bought the gun at a store in Oxford, and that the parents gave the weapon to their son as an early Christmas present.

During Saturday’s arraignment, McDonald said, “It’s … clear from the facts that (Ethan Crumbley) had total access to this weapon,” and that the parents “didn’t secure (the gun) and they allowed him free access to it.”…Shortly after James Crumbley bought the gun November 26, his son posted a picture of a gun on an Instagram account and captioned it, “Just got my new beauty today. SIG SAUER 9mm” with a heart-eyes emoji, McDonald said.

If the parental culpability had stopped with the purchase and  grant of access, I doubt they’d have been charged, but their jaw-dropping behaviors went far beyond stupidity and negligence. Jennifer Crumbley  posted about the gun on social media, calling it “his new Christmas present,” and took her son to a shooting range the weekend before the school shooting. When a teacher discovered Ethan searching for ammunition on his phone–the day before the shooting– and reported it to school officials, the mother not only didn’t respond when those officials called her, but sent a text message to her son saying, “LOL I’m not mad at you. You have to learn not to get caught.”  

On the day of the shooting , a different teacher became alarmed by pictures Ethan had drawn showing bullets, a bloody body, and a laughing emoji–along with alarming text.

The parents were called for a meeting in the school with a counselor and their son, who by that time had altered the illustration “by scratching out the drawings of the gun and bloody figure, along with the words, according to McDonald.”

The parents refused to take their son out of the school, and he was allowed back to class.

Other media outlets have reported that school officials strongly recommended that the parents obtain immediate psychological counseling for Ethan, but the parents appeared to dismiss that recommendation.

Later in that day–the same day his parents had refused to take him home– Ethan Crumbley “opened fire outside a bathroom, aiming at students in the hallway as well as those who were hiding in classrooms.” He killed four students and injured seven.

Maybe my long-ago student was right when he opined that some individuals shouldn’t be parents.  Since the Supreme Court appears ready to give government the right to require parenthood, maybe the Justices should stop cloaking that decision in rhetoric about fetal personhood, and just hold that government can decide who gets to procreate.

After all, the government with power to tell people they can’t abort can also tell them they must…

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