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November 29, 2016

Making the case that the next Administration needs to demonstrate that "laws are not just for the little people"

Writing here in the National Review under the headline "A Memo for Attorney General Jeff Sessions," former Justice Department officials Robert Delahunty and John Yoo share some interesting advice for the likely next AG.  I recommend the lengthy piece in full, and here is just a taste:

Hillary Clinton’s alleged criminality was a centerpiece of the last election and may well have cost her the presidency. It was not very long ago that crowds at Trump rallies were chanting “Lock her up!” We can think of no earlier presidential contest in which a candidate’s alleged criminal wrongdoing was so central an issue in the voters’ decision-making. This is truly an unprecedented case.

Unless President Obama acts first to pardon Clinton, the task of balancing these considerations will be left to the new president and his attorney general. Our view is that President Trump should offer her a pardon. Just as with President Gerald Ford’s pardon of Richard Nixon, Clinton’s acceptance of that offer would be widely understood as a tacit admission, if not perhaps of proven criminal guilt, then at least of wrongdoing sufficient to justify prosecution. We think that the matter should rest there.

But even if that were to happen, there are, apparently, more ongoing criminal investigations into the affairs of the Clintons and their inner circle. The investigation that Comey suspended concerned Clinton’s use of a private server to transact governmental business involving classified materials. Media reports have indicated that there are no fewer than five other investigations under way. These include at least one investigation into whether the Clinton Foundation has committed financial crimes or been sullied by influence-peddling.

We believe that those investigations — which were begun under the Obama administration — should be pursued. And if in the end, the findings of those investigations justify bringing criminal charges against the vast network of Clinton helpers and aides, those charges should be brought and tried.... Trump is right to express a desire not to harm the Clintons: The criminal process should never be turned into a political vendetta or even appear to be one. But no one, and certainly not the powerful and politically connected, should be above the law — the Clintons included. Trump’s campaign pledges on that issue resonated with the American public. The law is not just for the little people, and the little people are watching....

Jeff Sessions will take the helm of a Justice Department that has been terribly compromised in other respects. He must act decisively to change its culture. Again, the Clinton “reverse Midas” touch — transforming gold into dross — was at work. Candidate Clinton publicly offered to retain Attorney General Lynch in office if she were elected, even while Lynch at the time was charged with overseeing criminal investigations into the Clinton e-mail and Foundation scandals. By not publicly declining that offer — in effect, a bribe — Lynch tainted the integrity of the investigations as well as the office of attorney general.

President Obama also undermined public confidence in the Justice Department. He maintained that he had learned of Clinton’s private server only when everyone else had. Yet later leaks revealed that he in fact had corresponded numerous times with Clinton through her off-the-record system. Obama also proclaimed Clinton not guilty of wrongdoing even while the investigation into the use of her private server was still open....

These incidents came towards the end of an eight-year period in which the honor of the Justice Department had been badly tarnished. Much of the damage occurred during the five-year stint of former attorney general Eric Holder, the first and only attorney general to be held in contempt of Congress. (Holder’s conduct was so egregious that even most House Democrats declined to vote against the contempt resolution.) Under Holder, the DOJ became thoroughly politicized, taking positions that were, frankly, absurd — on legal issues such as congressional voting representation for the District of Columbia, presidential recess-appointment power, or the War Powers Resolution. Holder’s Justice Department brought cases not on their legal merits but in order to target the administration’s perceived political or ideological opponents....

This election was about the place of law in American public life. The voters were rightly repelled by the performance of public figures, above all Hillary Clinton and her entourage, who acted as if they were above the law. Voters resented President Obama’s chronic refusal to enforce the law — whether in health care or immigration — when he found that it did not suit his political purposes. They seem to have forgiven Donald Trump for his alleged manipulation of the tax code because, even if dodgy, his actions were not illegal.

As president, Donald Trump owes it to his voters and to the American people as a whole to restore the public’s trust in its government. He must repair the contract between the people and its agents that his rival and his predecessor have shattered. And Attorney General Jeff Sessions needs to be a strong and stalwart presence at his right hand as the new president makes this happen.

November 29, 2016 at 08:36 AM | Permalink


Too bad Yoo wasn't indicted.

Posted by: Don't Ask | Nov 29, 2016 9:14:17 AM

It's a good day when you quote NR at length.

Posted by: Bryan | Nov 29, 2016 9:54:00 AM

I'm supposed to take what Yoo says, including about "politicization" of the Justice Dept. and investigation of crimes, seriously?

Posted by: Joe | Nov 29, 2016 10:24:44 AM

I'm sorry, but the projection at work here is literally breathtaking.

Posted by: Ain't Nick | Nov 29, 2016 11:05:29 AM


Yes. The problem isn't with what he says, the problem is the double standard. From a psychological point of view, what "aint nick" said is exactly right.

The real import of a Trump Administration may be to cause the Democrats to deeply regret the fact that they ever tried to play responsibly. We shall see.

Posted by: Daniel | Nov 29, 2016 11:26:52 AM

I'm not going to grant the underlining premises there, Daniel, but it's a baseline concern. Such a purity position simply is not credible coming from certain parties. As to "playing responsibly," I'm not sure if playing more irresponsibly would have helped them. We can debate appropriate strategy but that is not how I'd phrase it.

Posted by: Joe | Nov 29, 2016 11:43:36 AM

Having Yoo write about someone else doing damage to the honor and reputation of DOJ is pretty hilarious, but in light of Trump's comments about being impervious to conflict of interest and anti-nepotism laws it is hard to take any of this seriously regardless of the author.

Posted by: Andrew | Nov 29, 2016 11:47:57 AM

Given Trump's own business dealings and that he seems to be considering people with even more serious issues with handling confidential information (i.e. actual disclosures to other people), it seems that continued investigation of the Clinton's is hypocritical at best. On the other hand, I am sure that Democrats in Congress would love to see the Republicans in Congress decide that the most critical issue facing the country is the need to investigate Bill and Hillary even more, particularly if Senators Collins, Graham, McCain, and Sasse decide that they are not willing to give President Trump a blank check.

Posted by: tmm | Nov 29, 2016 1:30:28 PM

The hypocrisy angle also makes it politically tricky to do. It gives the Democrats a prime reason to have them strongly to go after Trump, which they already are doing.

A true "changing the culture" would in fact involve putting up or shutting up. Release tax returns. Some sort of blind trust or more. Finding a way to quickly dispose of those lawsuits. Putting someone else than a supporter like Sessions at the head of the Justice Dept. (Cruz was a dubious alternative there.)

A truly honest analysis would factor that in at the very least.

Posted by: Joe | Nov 29, 2016 1:54:46 PM

This from the war crimes apologist who was spared investigation and prosecution at the outset by the Obama/Holder DOJ. Pretty rich stuff.

Posted by: Def. Atty. | Nov 29, 2016 4:15:41 PM

"war crimes apologist"? Hmmmm---the left tries to criminalize legal advice, and then gets to sneer at what Yoo said.

Weak. Utterly weak.

And Joe, you have no room to talk about Sessions---Eric "Marc Rich" Holder as AG? Stinks to heaven. Then he turns around and abandons judgments against racist guys threatening people at polling stations. Funny if not so pathetic.

Yoo is right. Compare and contrast Spitzer/Corzine with McDonnell. Ha ha ha ha ha ha ha ha.

Posted by: federalist | Nov 29, 2016 4:57:39 PM

federalist perhaps by accident makes my point about questionable messengers, at least from the opposite side's vantage point

Posted by: Joe | Nov 29, 2016 8:46:50 PM

Joe, you're a contentious idiot.

Shall we stroll down memory lane? Yoo gave legal advice. His legal advice was sound, and by the by, Pelosi and other 'rats were f'in briefed on methods later deemed by the left to be torture. They didn't say a word in objection.

The fact is--there are valid legal arguments that waterboarding isn't torture. And the left wanted to criminalize giving that opinion. And now--you douchebags whine about Yoo. Give me a break. You were cool with Eric "Marc Rich" Holder. You have no business whining about anything.

Posted by: federalist | Nov 29, 2016 8:56:43 PM

This is a joke. I don't even know where to start. Is Yoo really talking about the reputation and politization of the DOJ? Only in this piece, there is almost no one sentence that is a complete truth. Take for example the mud thrown at Obama. Does Yoo not know that there is a difference between emailing a private email address and knowing that there is a private server? If he doesn't understand the difference he's an idiot (and I wonder if he never ever used Powell's email when he was the sos) and if he does, he's a liar.

Posted by: Dan | Nov 30, 2016 8:04:37 AM

Dan, you mean the world's smartest man didn't know that Hillary was using private email to conduct government business. Yoo may not have been precise, but he wasn't slinging "mud." Obama participated in an evasion of the Federal Records Act--nice work for the most transparent administration in history.

You guys clown yourselves with your relentless partisanship.

Posted by: federalist | Nov 30, 2016 8:09:37 AM

As I said, "by accident."

The arguing the merits here -- no one will be surprised that I disagree there like a range of people from various ideological backgrounds -- is missing the point. The point is that allegedly I'm not one to talk about Sessions since Holder is a corrupt hack.

Not granting that, it "makes my point about questionable messengers, at least from the opposite side's vantage point." People on the right will complain about calling out Sessions from the left since they think Holder is corrupt. You aren't one to talk! etc.

Yoo is a lousy messenger here regarding conflict of interest and crimes by members of the Administration "from the opposite side's vantage point" on that level. Even some Republicans will realize this, even if they find the criticism wrong. Arguing the merits there from YOUR side doesn't really answer that at all.

Posted by: Joe | Nov 30, 2016 9:52:57 AM

How is Yoo a lousy messenger? Because he gave legal advice that fit comfortably within the bounds of reasonable lawyering (unlike, for example the advice regarding recess appointments)?

Bottom line, Joe, people like you will ignore the patent obvious lawlessness on your side (Loretta Lynch, Eric Holder, Hillary Clinton) and then foist nonsense talking points to smear those with whom you disagree. That's not making your point--it's pointing out how utterly laughable your idiocy is. Hillary Clinton had no business conducting official business exclusively on her private email account. And in the course of that wrongdoing caused Top Secret stuff to be on her server. Spin as you want; whine as you want about Comey and the GOP, she was the one who made that decision---it hurt the country and it was illegal.

You don't get to complain.

I'll lay it out in easy terms--the idea that Yoo is a bad messenger is a species of ad hominem argument. I am not doing the same--I am simply calling into question your bona fides--I am happy to take you on any time on the merits of anything. You, except for the most niggling of points, do not engage.

Your pusillanimity is only exceeded by your fundamental intellectual dishonesty.

Posted by: federalist | Nov 30, 2016 11:06:44 AM

On December 1, 2005, Yoo appeared in a debate in Chicago with Doug Cassel, a law professor from the University of Notre Dame. During the debate, Cassel asked Yoo,

'If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?', to which Yoo replied 'No treaty.' Cassel followed up with 'Also no law by Congress—that is what you wrote in the August 2002 memo', to which Yoo replied 'I think it depends on why the President thinks he needs to do that.

Posted by: ADC Wonk | Dec 1, 2016 11:38:25 PM

ADC Wonk--so what?

Posted by: federalist | Dec 2, 2016 2:03:02 PM

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