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June 24, 2023

Some reflections in headlines on Hunter Biden's "sweetheart" plea deal

I have not had a chance to read all the commentary that Hunter Biden's plea deal has generated, but I have made tome to gather here some notable pieces I have seen that capture all sorts of stories just through their headlines:

From Bloomberg, "Hunter Biden Plea Deal Pumps Up Republican Paranoia"

From Politico, "Garland denies allegations of politics impacting Hunter Biden plea deal"

From Ipsos, "Reuters/Ipsos Poll finds half of Americans think Hunter Biden is receiving favorable treatment"

From The Nation, "A Failson Meets a Failed Justice System"

From the Wall Street Journal, "It’s the Criminality, Stupid: Why Voters See Crooks in All Corners of Politics"

From the Washington Post, "Hunter Biden might have Clarence Thomas to thank for his gun plea deal"

In addition to the above pieces, I found particularly notable (and amusing) this troika of headlined:

From Newsweek, "The Hunter Biden Sweetheart Deal Endangers Us All. Every Criminal Is Going to Ask for It."

From Reason, "Hunter Biden's Prison-Free Plea Should Be Available to Everybody"

From the Washington Times, "Va. mom of 6-year-old who shot teacher will cite Hunter Biden’s plea deal for leniency, lawyer says"

Prior related posts:

June 24, 2023 at 06:51 PM | Permalink


Oh good grief Doug, citing WaPo on Hunter? Really? The fact is that he lied on the application, so even if Bruen gives drug addicts a right to own guns while addicted, there's the lying part. Such weak deflection.

Posted by: federalist | Jun 25, 2023 7:52:21 PM


By the by, with respect to the employee reimbursement discussed in the article, which Doug would never cite, Baron Budd did same thing, but no one went to jail.

This guy has a beef.

The fact is--either Doug's constrained by faculty lounge politics or he's ok with the two standards of justice in America. One wonders if our judiciary will put up with it. If I were the judge in the Va. mom case, I'd order the DOJ to brief the issue.

Posted by: federalist | Jun 26, 2023 11:42:31 AM

I cannot speak for everyone in the faculty lounge, federalist, but the vast majority of the papers authored by CJ academics these days lament that the rich and powerful (mostly white) get one standard of justice, while the marginalized (mostly people of color) get another standard. The entire BLM movement and calls to abolish the police and prisons (that still find expression in many faculty lounges) are deeply concerned with race and wealth as the main driver of "two standards of justice in America."

Similarly, one big reason many in the faculty lounge (myself included) advocate for marijuana legalization and reform of the punitive drug war is based in decades of data documenting "two standards of justice in America" when it comes to drug use and punitive drug law enforcement. (Hunter's history of drug use, of course, highlights this reality as does the drug use history of all three Presidents who served before Trump). I trust you are familiar with Michelle Alexander's "The New Jim Crow," and that book proved so popular because so many see race as the driver of "two standards of justice in America." I have repeatedly urged you to look at the federal stash-house sting cases because they serve as one extreme, but all too common, variation of racialized standards of justice in America that are created by DOJ policies and practices. That we still have a significant crack/powder sentencing distinction in federal sentencing law is yet another very tangible and lamentable marker of "two standards of justice in America."

To date, partially because of various deflections embraced by the "tough on crime" crowd, our judiciary has "put up with it." The Armstrong case is just one of many examples of the judiciary turning a blind eye to efforts to tackle "two standards of justice in America." I have asked you repeatedly if you think Armstrong should be overturned, but perhaps "federalist politics" prevent you from directly addressing a doctrine that stands in the way of efforts to break down "two standards of justice in America." I also think you balked at the recent application of a California racial justice law that is expressly designed to provide judges with more remedies to address disparate justice.

Of course, the SCOTUS Jones ruling highlights that now even some innocent federal prisoners can be subject to continued incarceration even if no one substantively disputes that their conviction/sentence is wrongful. When the legally innocent can get even worse justice than the clearly guilty, we have hit a whole new worrisome level of "two standards of justice in America."

If you are really troubled by two tiered justice and want the judiciary to do something, federalist, will you start by calling for overturning Armstrong, supporting racial justice acts in California and elsewhere, and supporting Jones work-arounds?

Posted by: Doug B | Jun 26, 2023 12:23:26 PM

Ha ha ha ha ha ha ha.

Posted by: federalist | Jun 26, 2023 12:33:21 PM

Federalist is barely one step above a troll at this point.

Posted by: Fat Bastard | Jun 26, 2023 11:11:57 PM

Fat Bastard, you're a shill for thugs. Doug may well be right that rich guys get off sometimes or that some places really suck--look for example, the initial failure to charge the animals who killed Auberry in Georgia cannot possibly be the only problem in that particular county given the deviation from what the appropriate prosecution decision would have been, But what we are talking about here is deeply problematic.

Hunter's crimes are so overt and so problematic that the slow-walking of the prosecution and now the lenience is evidence of a corrupt DOJ. The slow-walking helped a major party candidate for president, and this is coupled with the bullshit Logan Act investigation of Flynn designed to give the impression of collusion. Barack Obama and Joe Biden were in on it--so much for peaceful transfers of power, by the way. The DOJ also went after people who found Ashley Biden's diary, nice to have a Praetorian Guard, and also actively suppressed the laptop (to influence a campaign). Awful, and there's a lot more. And I am troll.

Hardly. Doug knows all of this is true, and therefore has to deflect. Weak.

Posted by: federalist | Jun 27, 2023 7:13:53 AM

What I know to be true, federalist, is that you are a partisan with a lot of curious feelings about law and its practice which seem often not closely connected to the reality of law and its practice.

Posted by: Doug B | Jun 27, 2023 10:11:53 AM

Yeah, Doug, because I ask why, given the reality that self-defense is a constitutional right, that someone in the shoes of Rosa Parks supposedly doesn't have the right to defend herself against an unlawful seizure, I am somehow disconnected from reality. Fine to think that way, but your view of "law" can be an instrument of tyranny.

And by the by, it seems that lawyers are going to start using the "Hunter" defense in court.

Posted by: federalist | Jun 27, 2023 10:31:36 AM

I am glad you want to ask hard questions about the exercise of state power, federalist, but we still await hearing how your feelings about Rosa Parks apply to legally innocent people left in federal prison without a clear habeas remedy after Jones. Can you cogently explain your feelings in this modern setting (while showing you actually understand important distinctions between moral views and legal doctrines)? The tyranny of Jim Crow laws are now formally in the past (and you are curiously dismissive of claims by the BLM crowd that they persist in other forms with similar function), but the tyranny of Jones is an on-going reality for Marcus DeAngelo Jones and perhaps thousands of other legally innocent federal prisoners. Can you address how your feelings about "self-defense is a constitutional right" and "tyranny" apply to those now subject to what (I think) you'd call an "unlawful seizure"?

As for the "Hunter defense," of course defense attorneys in the federal system are going to highlight Hunter's deal and 3553(a)(6) to argue for leniency. In comparable cases, they would be ineffective for failing to do so. But they will be making statutory sentencing claims, not constitutional claims based in the Equal Protection Clause that was central to the yarn you were spinning. This is basic law student stuff, federalist.

Posted by: Doug B | Jun 27, 2023 10:53:57 AM

Typical Doug. When struggling in a debate with federalist, he changes the topic to one discussed ad nauseam.

From behind NRO’s paywall:

“Brett Tolman, executive director of Right on Crime and former U.S. attorney for the District of Utah, told National Review that the misdemeanor charges against Hunter Biden are “not consistent with any historical practice.”

The DOJ, he explained, is run by attorney-general memos. The Holder memo says federal prosecutors “should ordinarily” charge the most serious readily provable offense though decisions “must always be made in the context of ‘an individualized assessment of the extent to which particular charges fit the specific circumstances of the case, are consistent with the purpose of the Federal criminal code and maximize the impact of Federal resources on crime.’” And, “in all cases, the charges should fairly represent the defendant’s criminal conduct, and due consideration should be given to the defendant’s substantial assistance in an investigation or prosecution.”

The culture of the DOJ is about “charging as many felonies as you can and getting as long a sentence as you can,” Tolman said. “And everybody else that’s been crushed by the Department of Justice or the criminal-justice system in this country has experienced that.”

“When I was U.S. attorney, I think I authorized maybe one or two diversions and they’re oftentimes cases where you don’t have victims. They’re also not part of any sort of top priority [at] DOJ,” he said.

But by contrast, gun possession cases have been a “top priority of DOJ for a very long time” under Project Safe Neighborhoods.

During his time as assistant U.S. attorney, the average sentence for gun possession cases was five years. He recalled sending one person to prison for 3.5 years just for possessing ammo without a gun.

“There’s just hundreds of thousands of these that are people serving long, lengthy prison sentences for a simple possession case,” he said.

He noted that the allegations stemming from Hunter Biden’s laptop should have made the case “one of the biggest, highest priority cases” the DOJ would ever see.

“But everything about this case is wrong. Everything about it in terms of the scope of the investigation, the length of time it took to investigate this. If you’re going to take that length of time, there is no way the only charges that you’re coming up with are two tax misdemeanors, a felony possession of firearm diversion and no jail time,” he said.“

Posted by: TarlsQtr | Jun 27, 2023 11:45:58 AM

What is basic law school stuff is that EPC applies to the decisions of prosecutors . . . .

And is Marcus DeAngelo Jones factually innocent, or is he just losing out on being able to make the claim . . . .

I've already provided my answer about actually innocent people in prison.

Posted by: federalist | Jun 27, 2023 11:49:25 AM


Interesting. Rittenhouse didn't follow, but fled, and he was threatened with life in a cage (Doug was ok with that), but presumably, Doug's ok with following a dude who's been shot and shooting him so more.

Posted by: federalist | Jun 27, 2023 12:22:45 PM

Nice to hear from you, Master Tarls, and always good to see you quote my pal Brett Tollman. He and I got a chance to hang out together last week while waiting to testify to Congress (as GOP witnesses) in support of more use of clemency by Presidents. I am not sure Brett and I have always agreed on everything --- eg, he worked to keep Weldon Angelos in prison for 55 years as US Attorney, while I was working to get him released --- but I agree with Brett 100% that there has been a long history of "everybody [getting] crushed by the Department of Justice or the criminal-justice system in this country."

I surmise Brett's current view, since he now directs Right on Crime, is that we have too often hammered way too many people way too hard for various gun crimes and that Hunter's sweet deal ought to be the norm for many others if they pose no real threat to public safety. (Right on Crime calls for, eg, "reducing excessive sentence lengths and holding nonviolent offenders accountable through prison alternatives.") Do you agree with the Right on Crime principles calling for prison to be reserved for "dangerous offenders and career criminals"?

(Also speaking of hammering people for ammo, I filed an amicus brief and argued before a Sixth Circuit panel that possession of shotgun shells could never constitutionally justify a 15-year term under ACCA. Would you agree? Sadly, I could not get the mostly-D-appointed judges on board with what struck me as a sentence that should make a totalitarian blush.)

For the record, just as I have a nagging feeling that the Clintons and the Trumps seemed to have gotten away with a whole lot, I also have a nagging feeling that the Bidens are getting away with stuff, too. I sincerely hope we can turn the page on a stinky set of baby-boomer leaders, but I remain quite fearful we will not be given any other choices yet again.

And, federalist, since you cannot seem to explain your self defense feelings in a way I can comprehend, I will stop asking.

Posted by: Doug B | Jun 27, 2023 1:02:21 PM

What did Trump get away with? The DOJ mucked with his election prospects in 2016 and his re-election prospects in 2020. They went after his Nat Sec Advisor for doing his job on the basis of the Logan Act. What you're missing is that the DOJ put its thumb on the scale in elections. That's a problem. And now they are giving preferential treatment to a Dem, when Trump people got the hammer. You consistently ignore these issues--even going so far as to tout Bruen as a reason Hunter got off easy--but that ignores the lie on the form. Weak.

My self-defense ideas are pretty easy to comprehend. Self-defense is a constitutional right, and that right doesn't go away if it's the government doing the threatening. I have pointed out that what you're saying means that people have to take abuses like those I've pointed out. I don't know that's really consistent with the idea that self-defense is a right. The implications of that idea ARE scary, and my larger point is that it means that government really has to act a lot better. Ultimately, the question becomes what the categorical imperative is--listening to government and fighting later in a forum the government chooses or being able to resist. The necessary implication of your view is that government gets to do what it wants, lawful or not, and maybe you get to complain about it later. That isn't really the rule of law.

This isn't hard to understand.

Posted by: federalist | Jun 27, 2023 1:43:14 PM

What makes you so tiresome, federalist, is you do not even bother to acknowledge (or seemingly understand) the many failings in your talking points. As but one of so many examples, you have yet to properly explain the basis for your assertion that "self-defense is a constitutional right" and where/how it exactly finds constitutional expression. You still have not engaged that most basic reality or in any way explained whether/why any/every state case possibly engaging SD issues is actually a federal constitutional matter. This is basic stuff, but you move past foundational doctrinal concerns to prattle off, yet again, your "rule of federalist" feelings. Worse still, you seem to believe you are expounding "law" --- though you run away from talking through real cases as you return only to hypos --- when you are obviously just expressing your feelings with no legal cites, no legal authority, no legal doctrines, not even a dissenting opinion or a law review to go with your statement of feelings. If you really think your feelings are legally meaningful, try to write them up in a rigorous way under your real name rather than just wasting time as a blog troll under a fake name. As I noted above, Marcus DeAngelo Jones and perhaps thousands of other legally innocent federal prisoners would surely like some advice on how to move forward if this really "isn't hard to understand."

Also, if this is so simple, I trust Bill and Master Tarls might explain whether they fully understand and fully agree with what I see as your claims that all legally innocent people in federal prison have a legal (constitutional?) right to attack guards and other law enforcement officials involved in their "unlawful seizure." (Again, I may not be accurately saying what you claim, which is why in the wake of Jones, a rigorous write up from you could be helpful to so many -- unless your theory only applies to the late Rosa Parks.)

Posted by: Doug B | Jun 27, 2023 2:54:03 PM

Do you really believe that the right to self-defense is at the pleasure of the state? Really? Do you think that a state could pass a law saying that no citizen may use violence in response to violence?

Brown v. United States is an expression of the right to self-defense.

Posted by: federalist | Jun 27, 2023 4:00:49 PM


You have this weird habit of connecting a poster’s belief to everything a provided source supports.

The quote I provided had nothing to do with whether I agree with Brett on whether, “we have hammered on too many people,” with gun crime or who should go to prison.

The quote is about the specialized treatment Hunter got and how it goes completely against the DOJ playbook, which Brett provides.

And this is much worse than a powerful guy gets away with it story. This is part of a coup d’etat that started with Hillary working with the Russians to interfere with an election while claiming the other side was doing it, a DOJ coverup of her role, engaging in an illegal investigation to discredit the victim, a coverup of the laptop to interfere with a second election, and gaslighting the American people for seven years now.

No writer would have the imagination to come up with such a political thriller. The above is the biggest political scandal in history and few even acknowledge it. As much as I hate Trump, he is a victim. I can’t believe I even said it, but it is true.

Posted by: TarlsQtr | Jun 27, 2023 5:30:37 PM

Brown is obviously a common law ruling, and the fact that it does not cite any provision of the Constitution (and that nobody ever cites it for a constitutional principle) serves as proof that Brown has no constitutional juice to squeeze. (Intriguingly, Justice Holmes in Brown does reference "the law from the time when a man who had killed another, no matter how innocently, had to get his pardon....")

For anyone truly committed to constitutional textualism, I think finding a "right to self-defense" in the Constitution is a very challenging question. (And, your fave Justice Scalia often stressed that not every good idea is safeguarded by our charter.) I tend to look to the Ninth Amendment to find all the rights I want to find in the document, so I wondered if you think it is located there. Perhaps you instead would ground it in the Due Process Clause, but rulings like Kahler v. Kansas and Martin v. Ohio become obstacles to that route.

More problematically, if there is a constitutional right to self defense, what are state limits in restricting it? Ohio has a broad and vague "at fault" limit on SD --- in Ohio "no citizen may use violence in response to violence" if that citizen "was at fault in creating the violent situation." Is that unconstitutional? How about states that still have broad duties to retreat? Is imminence as a limit constitutionally allowed or does a battered wife have a constitutional right to kill her sleeping husband? And so on and so on. If the US Constitution says the state MUST have a self defense law, must it have any particular attributes?

Whatever are your answers to these particulars --- ie, where is SD right in the constitution and what are its parameters --- can you explain why people who fail with SD claims in state court do not try to claim that they have had their constitutional rights violated? I am not aware of state prisoners bringing federal habeas claim based on a purposed constitutional right to SD. Have generations of lawyers been leaving great constitutional claims behind?

Posted by: Doug B | Jun 27, 2023 5:34:27 PM

One more thing.

The biggest problem created by a biased DOJ, is that it loses credibility as an institution. There are reportedly recordings of Trump talking about invasion plans regarding Iran, and if so, he should go to prison. But after the way the DOJ has acted, can we feel confident it’s true? Can we feel confident that Biden’s docs were looked through thoroughly and given equal consideration? Especially when we know some could have only been stolen from a SCIF?

Between this and COVID, the Dems have ruined all trust and confidence in our government. Instead of getting cushy jobs at CNN, all of these disgraced bureaucrats and politicians (looking at you, Adam Schiff) should be removed from polite society.

Boss Tweed is blushing at what the Dems are getting away with.

Posted by: TarlsQtr | Jun 27, 2023 5:46:31 PM

Master Tarls: I take seriously your concerns (although your prior emphasis on Senator Grassley proved not as juicy as I had hoped). Of particular note is your statement that DOJ is involved in a "coup d’etat" that amounts to "the biggest political scandal in history and few even acknowledge it." Do you have a sense for why the likes of Jeff Sessions and Rod Rosenstein and Jeff Rosen and Bill Barr and Christopher Wray are disinclined to see or discuss these matters in the way that you do? Are they all "in on it"? I have noted before that I think both Clintons got away with way too much --- I think both should have been subject to felony prosecutions --- and the stink around the Bidens is almost older than "the Big Guy." But do you think it is pure hatred for Trump that lead so many to look the other way? Joe Biden seems like the weakest Prez of my lifetime (including Gerald Ford) and yet many with rich GOP history are helping with the coup d’etat because they hate Trump so much?

Key point on the CJ front is that the real "DOJ playbook" is to hammer lots and lots of little guys and to often (but not always) give elites relative breaks. Read about the lenient treatment of Judge Camp, or the first prosecution of Jeffrey Epstein, or how about David Petraeus, and so on. Part of the story is that elites have a lot more resources --- money, time, power --- to fight government players who like easy wins and (reasonably?) think long fights are not "worth it" if there is any risk of losing. So, as I see it, DOJ and every other law enforcement force ends up structurally inclined to go harder after the marginalized and softer after the elites. And, in every era, just who is elite getting a break and who is marginalized getting slammed has political elements.

Posted by: Doug B | Jun 27, 2023 6:02:54 PM

Good question, if not all that valid. My personal theory would be that the top of DOJ needs information from both directions. Garland likely was under pressure from above to not press the issue with Hunter, which is outlined by his perjury to Congress. This has been verified by two whistleblowers who indicated that Weiss stated he could not bring charges. I also believe a lot of those you mention were not getting sufficient information from below and are only seeing what is selectively put in front of them. It’s not like Sessions was reading Peter Strouck’s emails in real time, nor was there an IG report, etc. The tail (liberal bureaucracy) wagging the dog.

And I think we can both agree that both Sessions and Barr are a couple of the very few “good guys” in all of this. Despite Trump’s campaign rhetoric, Sessions didn’t “Lock [Hillary] up.” Certainly better than Wray or Garland, for example. Imagine him on SCOTUS? He is filth. I expect both of Sessions and Barr think a lot more than they would ever say about the current DOJ.

As far as my use of coup d’etat, you didn’t really challenge the facts as we know them. Do you know something the rest of us don’t? What would you call the attempted influence on two elections and a phony investigation to hamstring a President?

Posted by: TarlsQtr | Jun 27, 2023 6:46:03 PM

And on your one more thing, Master Tarls, you seem to be humming just a slight variation on the tune of the BLM Abolish crowd. That crowd has long concluded that unredeemable bias and corruption infects --- and so "ruined all trust and confidence in" --- our existing criminal justice systems. (They now call it the "criminal legal system" because they do not want to even hint that it seeks "justice" in any way.) With such bias and corruption baked into this system, the only path out is to abolish and start over --- or, as you put it law enforcement "should be removed from polite society." Sound like you are largely inclined to join the BLM band, though playing a slightly different tune to get with the rhythm.

Posted by: Doug B | Jun 27, 2023 6:47:40 PM


You talk about the DOJ hammering the little guy but giving breaks to the elite and rich. Who is more elite and rich than a billionaire and former POTUS? Doesn’t there have to be something else in play?

Posted by: TarlsQtr | Jun 27, 2023 6:48:37 PM

Thumbing one's nose at federal prosecutors always leads to getting slammed --- ergo the extreme "trial penalty" many face and all sorts of ugliness for those unwilling to "play ball" with DOJ. Had Trump given back the docs and not played games, I am certain he would not have been charged in the Florida documents case. Elites who do not play nice DOJ --- see, eg, all the white collar folks who go to trial --- generally get the wrath of the system. Bill helped build it that way so the feds do not even have to shoot fish in the barrel --- they can just say you better jump into the net or else. Trump is getting the "or else."

Posted by: Doug B | Jun 27, 2023 7:14:38 PM


Does any serious person not know that BLM was a scam? It was always a political movement based on falsities. There has never, nor has there ever been, a police killing unarmed black men epidemic. It was always a movement of socialism. Look at their platform from even the first year and it is clear.

That the DOJ interfered with two elections and intentionally hamstrung a president is not even a question of fact. It’s only how much and who is responsible.

Nor am I calling for the abolishment of the FBI. I’d rather decapitate it from mid-management up and allow each to apply for their jobs back with a thorough evaluation of their past cases.

It’s the only way to have it regain its credibility.

Posted by: TarlsQtr | Jun 27, 2023 10:22:22 PM

I surmise the BLM crowd views capitalism as inherently racist and corrupt and their concerns about the “deep state” run far deeper than just law enforcement as they see bias and corruption as inherent in many of our existing governing structures. You see and are troubled by a different sort of bias and corruption in the “deep state,” but the songs you are singing about the flaws of the American governing system are quite comparable in various ways.

That said, it seems you've only come to see government bias and corruption problems in recent decades; they've been flagging these issues for centuries. You're troubled by Trump recently being "hamstrung" by the FBI; they lament Fred Hampton being assassinated by the FBI. The patterns and political commitments may be different, but the fabric of the perspectives are still cut from the same kind of cloth. (And I am always so eager to limit government powers, especially criminal punishment powers, in all settings and in all sorts of ways because I think you all (and many others) make some important points.)

Posted by: Doug B | Jun 27, 2023 11:45:11 PM

Doug, hanstringing a president in such a manner is an attack on democracy. Or do you disagree?

Posted by: federalist | Jun 28, 2023 12:27:31 PM

I do not disagree, federalist.

Posted by: Doug B | Jun 28, 2023 3:11:15 PM


“ I surmise the BLM crowd views capitalism as inherently racist and corrupt and their concerns about the “deep state” run far deeper than just law enforcement as they see bias and corruption as inherent in many of our existing governing structures.”

Then you admit the entire premise of the movement is a lie. BLM was originally portrayed to be a single issue group, not an anti-capitalist and alphabet group movement. They got rich off of the lie of an epidemic of cops killing unarmed black kids.

That said, I cannot believe you don’t see the difference in your awful analogy. BLM is a political movement led by citizens, completely legit in the sense that democracy is built on movements, consensus building, etc.

The attack on Trump is one done by a runaway bureaucracy. You can surely see the difference between a political movement and an attack on politicians, including the head of the executive branch, by the executive’s own employees, right? It is illegal to make a political phone call on government time, yet you cannot see the difference between illegal investigations based on politics and BLM?


Posted by: TarlsQtr | Jun 28, 2023 4:19:50 PM

Brown is a "common law" ruling? How so? It leverages the pre-Constitution common law. But I will ask the question--can a state takeaway the power of self-defense. Could a state pass a statute that said that I have to let someone rape my child?

Posted by: federalist | Jun 28, 2023 6:26:08 PM

So Doug, have you conceded that Strzok, Comey etc. hamstrung Trump and thus attacked democracy?

Posted by: federalist | Jun 28, 2023 6:27:06 PM

Master Tarls: the "BLM crowd" point I was seeking to make is just that many folks have been complaining about biases and corruption in the FBI, DOJ and other existing governing structures long before the MAGA movement. That's the only analogy I was trying to make when saying "you seem to be humming just a slight variation on the tune of the BLM Abolish crowd." Of course, I certainly can sees differences between political biases in the FBI/DOJ that lead government misconduct and racial biases in the FBI/DOJ that lead to government assassination of citizen activists on J Edgar Hoover's enemies list. (Though, of course, Hoover's enemies list was, as I understand it, a mixture of racism and politics.) And when I reference the "BLM crowd," I mean that only as a short-hand for modern variations on century-long complaints about pernicious racialized politics in federal law enforcement structures. And I suspect that "crowd," if it had effective leaders, would happily swing the FBI/DOJ-focused axe with you to "decapitate it from mid-management up." Though BLM folks would then hope to keep swinging.

federalist: you are such a legal clown sometimes. You ask, how is Brown a common law ruling, but still seem to realize it references (only) common law cases. But not "pre-Constitution common law" --- Justice Holmes cites his own Mass Supreme Judicial Court rulings, Texas cases, and SCOTUS rulings from the 1890s and 1900s, not any pre-Constitution cases. Geez. (Also, if you check out the version of Brown with the parties' briefing, you can see the parties debate only common law doctrines, not any constitutional law: https://tile.loc.gov/storage-services/service/ll/usrep/usrep256/usrep256335/usrep256335.pdf)

And not only are you unable to understand a SCOTUS ruling you cited, you are unable to understand I said I would likely argue for a right of SD in the Ninth Amendment in extreme cases (which have never arisen). But finding substantive rights in the Ninth Amendment can be controversial -- eg, I also see an abortion right there --- which is why I asked you where you think SD is to constitutionally located (and also asked why nobody ever seeks to litigate SD as a constitutional right if it is widely accepted as one). I also mentioned that the state of Ohio does take away the right of self defense if you are "at fault" in creating the situation. Is that unconstitutional in your view?

As for Strzok, Comey etc., I sincerely have no crisp sense of what they specifically did to "hamstring Trump." I think I have some sense for what Hillary's crowd did, and she seems to have "attacked democracy." And I certainly think any persons who intentionally seek to interfere unlawfully with the work of duly elected officials can and should be accused of having "attacked democracy."

And, Master Tarls and federalist, why no tough questions for Bill about what he saw inside DOJ for decades? I am pretty sure his times with DOJ overlapped with Comey and Wray and Barr and I think he was pals with Sessions. He loves to attack defense attorneys, but they are obviously not the ones who "attacked democracy" from inside the house. What kind of DOJ culture and beliefs can explain the coup? I'd guess the same culture and beliefs that runs stash-house stings and defends extreme ACCA sentences, the culture and beliefs that Bill seems to be quite proud about.

Posted by: Doug B | Jun 28, 2023 8:51:04 PM


I would be welcome to have this discussion with Bill. He hasn’t been on this thread, however.

I believe there is more than a “slight variation” between decapitate the political bureaucracy at the top and abolishment. The former is also legitimate complaint while BLM was built on a lie.

And I get that there has been corruption from the founding of the FBI until now. Some were gross and indeed indicative of necessary reform. If an organization isn’t constantly reforming, it is backsliding.

I just see this run from Hillary to now as democracy threatening, much more dangerous than even egregious acts against MLK, Fred Hampton, etc.

Posted by: TarlsQtr | Jun 28, 2023 9:15:39 PM

I said the "slight variation" in response to your statements that "the Dems have ruined ALL trust and confidence in our government" and that "ALL of these disgraced bureaucrats and politicians (looking at you, Adam Schiff) should be removed from polite society." I have not stress the "all" i these phrases because that led me to wrongly think you were calling for abolish-like house cleaning.

But now I surmise that you hope a bureaucrat's scalpel rather than an abolish blowtorch will get the job done. I suspect the BLM crowd might preach that long-standing biases in FBI/DOJ are not so easily excised.

And I sense various views on the relative threats and dangers of different FBI/DOJ biases can often turn on whose votes and lives are most threatened.

Posted by: Doug B | Jun 28, 2023 9:38:21 PM

Doug, you give away the game when you cannot just come out and say that states have the right to take away SD rights. And if Brown doesn't state a constitutional rule (and the common law rights are pre-Constitutional, whether or not expressed in post-constitutional rights), then what does it state? Certainly, as you know, the common law doesn't override a statute (you know, the thingy under which Brown was prosecuted). In any event, the right to SD has limits--you cannot provoke a fight, then draw a gun and shoot someone (unless the provoked person is using deadly force) (that's the general rule).

If you don't know what Strzok and Comey did, well, I don't know what to tell you--read Andrew McCarthy.

Posted by: federalist | Jun 29, 2023 8:53:41 AM

post-constitutional cases.

Posted by: federalist | Jun 29, 2023 8:54:19 AM

I "cannot just come out and say that states have the right to take away SD rights" because I am not sure they can. I think there might be a constitution right, under the Ninth Amendment, to a various constitutional necessity defenses (eg, I think Angel Raich should have prevailed on a Ninth Amendment medical necessity claim, which Justice Stevens hinted at in OCBC.) The issue has never arisen, but I do view Ninth Amendment as a safeguard of rights/liberties not protected elsewhere, and SD could fit there in extreme cases. But state law (and federal common law) has always reasonably protected SD right/liberties.

But that you do not even understand that there are huge distinctions between common law doctrines and constitutional doctrines makes me wonder if you even are a lawyer. In the criminal law area, defenses have long been developed at common law to place restrictions on the reach of criminal statutes. In Ohio, all the common-law affirmative defenses work that way, and the same has long been true in federal law. (That's been the assumption even in modern federal SCOTUS cases (see, eg, SCOTUS cases like OCBC (necessity), Dixon (duress)). Perhaps it is just the medium of blog comments that make you seem especially dense, but the kind of basic legal matters you seem to completely misstate (or misunderstand) continues to be stunning.

Posted by: Doug B | Jun 29, 2023 9:59:19 AM


I don’t consider a field agent in Nebraska is a “bureaucrat.”

Posted by: TarlsQtr | Jun 29, 2023 10:26:06 AM

How about all the field agents involved in stash house stings in Chicago and elsewhere nationwide (seemingly pushed by ATF field agents and maybe others)? Those involved in Fast and Furious in Arizona? Notably, these constitutionally dubious operations seem to really kick into high gear in the GW Bush years.

Posted by: Doug B | Jun 29, 2023 10:39:45 AM

Doug, if the statute under which the guy was prosecuted does not admit of a self-defense defense, then to add that defense is either a statutory interpretation case (i.e., to say that the statute was passed against the backdrop of common law and thus absorbed it, so to speak) or a constitutional limitation. It does not appear to be a statutory interpretation case; thus, what's left is constitution. Now, I agree that a lot of non-constitutional cases have been erroneously afforded constitutional status when they really were just SCOTUS supervising lower courts on procedure--the Ninth Circuit made that mistake in 2002. But here, there are only two choices.

Posted by: federalist | Jun 29, 2023 10:40:18 AM

federalist, are you asserting there is no such thing as "common law" in an age of statutes anywhere or just for federal law or just for federal criminal statutes? Of course, statutes can and sometimes will expressly supersede common law, but SCOTUS in Dixon as recently as 2005 spoke of the "common-law rule that now prevails in federal courts" and of "the federal common-law rule" in the context of applying a traditional common law defense to a general statutory crime.

The place of "common law" in modern legal doctrines is a fascinating general topic. But, of course, prior to Erie, federal courts of all stripes, and especially Justices like Justice Holmes, were keen on developing a robust federal common law in all sorts of settings. Brown is obviously a common law case, not a constitutional one. Have you ever seen anyone, anywhere in any setting citing Brown as a constitutional holding?

Posted by: Doug B | Jun 29, 2023 10:58:51 AM


Didn’t F&F occur under Obama?

Dubious law enforcement tactics are not the same as corruption. We are talking apples and sofas.

I’m all for stash house stings.

Posted by: TarlsQtr | Jun 29, 2023 5:30:02 PM

Doug, why are you citing Erie? That had to do with following state law. Brown was a federal case. I get it that Erie is probably in cf. land, but it's not directly applicable to Brown.

No one really needs to cite Brown because no one questions SD rights. But how is Brown not--do you think if a state took away self-defense rights that Brown would not be cited?

And Doug, Dixon is an example of my first category, and if you want to say Brown is in that category, fine, but the court doesn't say that, so you're left with the second option.

Posted by: federalist | Jun 29, 2023 5:49:27 PM

Master Tarls: F&F started in 2006 under AG Gonzales during the GWB years (and not long after Comey was the DAG, so I suspect he had a hand in planning it). That you do not recall that reality serves as a good example of how effective DOJ can sometimes be at playing political games as serves its state-power interests. Same goes for the fact that most folks don't know what stash house stings are, even though their racialized realities have been well documented in court. And, for those who are the target of "dubious law enforcement tactics," abuses of government power to ruin the lives of individual citizens is a big sofa (or, in some instances, a coffin), though where one sits may shape where one stands on federal use of power to go after whomever is on the latest DOJ enemies list.

federalist: I mentioned Erie because, as I said, before Erie (which is when Brown was decided) "federal courts of all stripes, and especially Justices like Justice Holmes, were keen on developing a robust federal common law in all sorts of settings." The point is that in 1921, SCOTUS in a case like Brown would have not worried about the appropriateness of a common-law ruling like Brown as an form of judge-made law (apart from statutory or constitutional law). And that is why Brown cites all sorts of common law cases and not any constitutional provisions (or statutory provisions) in its discussion of SD -- it is fundamentally a common law ruling, not a constitutional one.

And state courts and legislatures take away SD rights all the time when declaring that being "at fault" eliminates the right OR when placing other requirements/restrictions on the right. To my knowledge, never have state courts or state legislatures or the Model Penal Code drafters or anyone else believed or suggested that any aspects of common law or legislative development of SD is subject to constitutional regulation or restriction. That's the key point -- I can cite thousands of examples of common law development of SD, but you have yet to cite a single example of constitutional engagement of SD. So what evidence, in legal doctrine or legal practice, is there to support claims that SD is a constitutional right? (Again, I would be inclined to say it is an enforceable right via the Ninth Amendment, but that is contestable and constitutional particulars are discussed at all in Brown or any other case I am aware of.)

Posted by: Doug B | Jun 29, 2023 6:38:02 PM

Funny the details Doug will pull up when 'rats are defended. There were significant differences between F & F and the Bush era program, which Cornyn got Holder to admit on the record.

I know why you cited Erie, but you didn't explain its relevance, and it doesn't detract from my point. And because SD is not unlimited does not make it less of a right.

Posted by: federalist | Jun 30, 2023 2:48:42 PM

And still we all await any cite to any example of any court or legal authority discussing SD as a federal constitutional right. Do ya have any?

Posted by: Doug B | Jun 30, 2023 3:40:51 PM

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