Author Archives: JQB

The Mueller Investigation & Foreign Agents

In light of the New York Times‘s lead story yesterday, reporting that the FBI in mid-May 2017 began to investigate whether President Trump is a Russian agent, look again at Special Counsel Mueller’s December 4, 2018, pre-sentencing Memorandum in the Michael Flynn case.  …

This continues as a thread on Twitter.

 

 

William P. Barr & Robert S. Mueller, Working Together in the Department of Justice, 1989-1993

(Also on Twitter–)

1/ Short thread: William P. #Barr has a history of working closely with Robert #Mueller in @TheJusticeDept. I think that their #DOJ association is a good basis to presume that Barr thinks highly of Mueller as a law enforcement professional & as a person.

2/ In the #Bush41 administration, beginning in 1989, Barr & Mueller worked under AG Dick #Thornburgh. Mueller was Thornburgh’s principal aide on criminal matters. Barr was Assistant AG heading the Office of Legal Counsel (OLC).

3/ In 1990, the Deputy Attorney General (Donald B. Ayer) resigned. President Bush appointed Barr to succeed Ayer as DAG.

4/ In that same time period, Asst. AG Edward S.G. Dennis, head of the Criminal Division, also resigned.

5/ President Bush appointed Mueller to succeed Dennis as AAG heading the Criminal Division.

6/ When AG Thornburgh resigned in 1991 to run for the U.S. Senate, Barr became Acting AG. President Bush soon appointed Barr to succeed Thornburgh as AG.

7/ AG Barr & AAG Mueller served together in DOJ until the Bush administration concluded in January 1993.

Michael Cohen’s Upcoming Federal Sentencing & James McCord’s Role in Watergate

(Also on Twitter, slightly edited–)

1/ On Michael Cohen’s upcoming federal sentencing & James McCord’s role in #Watergate—

2/ #MichaelCohen, President Trump’s former lawyer, pleaded guilty in August to eight federal crimes, two related to Trump’s campaign finances & six related to Cohen’s personal finances.

3/ In pleading guilty to the campaign finance crimes, Cohen implicated President Trump in hush money payments to two women in 2016.  Cohen & Trump worked together during his presidential campaign, Cohen told the Court, to conceal affairs that the women had with Trump.

4/ Cohen also pleaded guilty last week to an additional federal crime: making false statements to the U.S. Senate about Trump’s secret efforts during his presidential campaign to make a real estate deal with the Russian government.

5/ Cohen’s Aug. 2018 guilty plea was negotiated with the U.S. Attorney’s Office for the Southern District of New York.  His Nov. 2018 guilty plea was negotiated with the Office of Special Counsel Robert #Mueller.

6/ Cohen reportedly concluded earlier this year “that his life has been utterly destroyed by his relationship with Mr. Trump and his own actions, and [that] to begin anew he needed to speed up the legal process by quickly confessing his crimes and serving any sentence he receives…”  https://www.nytimes.com/2018/12/03/nyregion/michael-cohen-trump-strategy.html

7/ Cohen thus decided to plead guilty without having a deal with prosecutors requiring him to cooperate in continuing investigations & possible future trials & then to seek credit in sentencing for that cooperation.

8/ Cohen has, however, cooperated actively with federal law enforcement & with state law enforcement, & he has pledged to continue to do so.

9/ Cohen is scheduled to be sentenced on this Friday, Dec. 7, in the SDNY by U.S. District Judge William H. Pauley, III.  Cohen’s attorneys have detailed to the Court his cooperation & asked that he be sentenced to probation.

10/ President Trump has tweeted that Cohen “should … serve a full and complete sentence.”  https://twitter.com/realDonaldTrump/status/1069614615510859776

11/ Mueller’s office agreed with Cohen to inform the Court of his cooperation.  It is expected to do so soon.

12/ The #Watergate comparison:  Cohen’s role in the investigations of possible crimes involving President Trump & others close to him in business, in his presidential campaign, & in his administration, resembles the role that James W. #McCord, Jr., played in Watergate.

13/ McCord, formerly an FBI agent & then a CIA officer, worked in 1972 as a bodyguard & a security coordinator at the Committee to Reelect the President (CREEP) [#Nixon].

14/ On June 17, 1972, McCord was one of five burglars arrested in Democratic National Committee offices in the Watergate hotel & office complex in Washington, D.C.

15/ The U.S. Department of Justice—the U.S. Attorney’s Office in D.C.—investigated.  It persuaded a federal grand jury to indict McCord, his fellow Watergate arrestees, & two others to whom they were connected.

16/ Judge John J. #Sirica, Chief Judge of the U.S. District Court for the District of Columbia, tried the case.

17/ Early in the trial, five of the defendants—a former White House employee named E. Howard Hunt & the four other burglars who had been arrested at the Watergate with McCord—pleaded guilty.

18/ The trial of McCord & his remaining defendant, CREEP general counsel G. Gordon Liddy, went forward.  The jury convicted each man on every charge.

19/ Chief Judge Sirica, skeptical that all the facts had been brought out at the trial, then prepared to sentence the seven men.

20/ On Tuesday, March 20, 1973, three days before the scheduled sentencing, Judge Sirica was shocked to find McCord in the reception area of the judge’s chambers, talking to one of his law clerks.

21/ McCord was there to deliver a letter.  It turned out to be one of the most consequential letters in U.S. history.

22/ After taking appropriate precautions, Judge Sirica, before witnesses, opened McCord’s letter.  As he read it, he began to think, according to his memoir, “This is it, this is it, this is the break I’ve been hoping for.”  http://watergate.info/1973/03/19/mccord-letter-to-judge-sirica.html

23/ Judge Sirica kept the letter secret from the public until McCord’s sentencing at the end of that week.  But, on that Tuesday evening, he shared & discussed it with his other law clerk.  “I’ve always told you I felt someone would talk.  This is going to break this case wide open.”

24/ On March 23, Judge Sirica read McCord’s letter in open court.  He then sentenced the convicted defendants.  He gave lengthy sentences to six & put off sentencing McCord.

25/ McCord’s letter indeed began the unraveling of Watergate.  It led to further investigations, confessions, guilty pleas, indictments, & convictions, & to a President’s resignation.

26/ McCord committed serious crimes.  Then he came forward & told truthfully to prosecutors, juries, & Congressional committees, what he had done & what he knew.

27/ This cooperation earned him judicial credit.  Chief Judge Sirica sentenced James McCord in November 1973 to one to five years in prison.  He ended up serving four months.

Mets & Management

I write from New York Mets Country—I work in Queens, just a few miles from Shea Stadium Citi Field, surrounded by many great people who are Mets fans.  (And I write from the baseball offseason—painful.)

The Mets have a new general manager, Brodie Van Wagenen.  He is a former sports agent, including for some players whom the Mets, so now he, employs.

It’s odd that he has no experience in the management of a baseball club.

It’s also problematic that he has real conflicts of interest, between his loyalties to players he represented in the past and his job now to boss them.

Van Wagenen could turn out to be great.  But I’m doubtful.  I base this on the above, and on his goofy statements—yes, things he said; how he speaks about what he thinks—at his October 30 introductory press conference.  These included:

“All I can go off of is what my experience has been and try to surround myself with people that fill in the gaps that I lack.”

“I hope to have an existing group of people that are here, and I hope to build around them, regardless of what the titles are.”

“I want [the Wilpon family, which owns the Mets,] to be involved. The truth of the matter is, if they’re not, that’s bad ownership.”

Yes, I know—former New York Yankees star, then Mets player and then Mets manager Yogi Berra also had an amusing way with words…  But Yogi was a field manager, not a general manager.  He knew, to put it mildly, everything that his job required.

Being General Manager is not only about knowing the game.  GM is a major business leadership position.  To be effective, a business leader needs to be, and to show it by sounding, sharp.  At least so far, Van Wagenen hasn’t shown it.

Oh, and one more strike against Van Wagenen as general manager—it was Jeff Wilpon’s idea.  The New York Times reports that Wilpon, the Mets co-owner and chief operating officer, is Van Wagenen’s friend.

It was Wilpon—part of what New York sports fans all know to be the Mets, well, to borrow a phrase, “bad ownership” [So maybe Van Wagenen does speak well, and slyly?]—who first suggested to Van Wagenen that he should apply for the general manager position.

Van Wagenen was reluctant (good first instinct), but in the end he applied.  Wilpon then hired the candidate he had recruited.

* **

Pitchers and catchers report to spring training in just a few months.

And someday, Mets fans,…

“Behind Enemy Lines”

This post is not about the 2001 feature film of that name.  That film is a family holiday classic … if you happen to be a person who was wandering around Times Square at Christmastime ’01 and picked a film for the family to see without being entirely attentive to your younger child’s sensibilities.  But I digress.

I’m ambivalent about football, because of what we now understand well about the brain injuries it causes.  And I’m a hypocrite who roots intensely for – indeed I co-own – the Green Bay Packers.

Thus the point:  I read recently a Princeton University obituary of alumnus Jonathan G. Bunge ‘58.  He was an Illinois lawyer whose life had many great components.

Read it here – you’ll see the particular greatness that caught my eye.

A Law Faculty Candidate and His Judicial Reference (1934)

Posted over on PrawfsBlawg (thanks!), a piece on U.S. Supreme Court Justice Benjamin N. Cardozo and a lawyer who was seeking in 1934 to become a law professor.

October 4, 1934:  Justice Cardozo, wearing his Phi Beta Kappa key.

Barnette at 75

Thursday, June 14, 2018, will mark the 75th anniversary of the decision by the Supreme Court of the United States, embodied in Justice Robert H. Jackson’s opinion for the Court, in West Virginia State Board of Education v. Barnette.

The Barnette decision, rendered amid the commendable patriotism that characterized the United States home front during that dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to participate in a salute to the American flag and a recitation of the Pledge of Allegiance.

The case was brought on behalf of students who were Jehovah’s Witnesses.  In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag.  For that refusal, they were expelled from school.  Expulsion had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.

In Barnette, the Supreme Court held, by a vote of 6-3, that the flag salute and pledge requirements violated the children’s First Amendment rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”

A leading hero of the Barnette case, in addition to the children, their parents and their lawyer, was the Chief Justice of the United States, Harlan Fiske Stone.  In June 1940, when Stone was an Associate Justice and U.S. involvement in the war in Europe was impending, he had dissented powerfully but alone from the Court’s decision to uphold Pennsylvania’s flag salute requirement.  (At that time, Robert Jackson, who was U.S. Attorney General and a Supreme Court nominee, reported to President Roosevelt and the Cabinet on the anti-alien, anti-“fifth column” hysteria that was sweeping the country.  Jackson criticized the Supreme Court for joining in that hysteria by ruling against Jehovah’s Witnesses in the Pennsylvania case.)

By June 1943, Stone had been appointed Chief Justice; new Associate Justices, including Jackson, had joined the Court; and a majority of the Justices was prepared to revisit and rectify what they saw as the Court’s earlier mistake.

Chief Justice Stone assigned Justice Jackson, the junior justice, to write the Court’s opinion in Barnette.  Although all of it bears reading (and regular rereading), some words to consider particularly closely are Jackson’s summary paragraphs:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own.  Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.  To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.  We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great.  But freedom to differ is not limited to things that do not matter much.  That would be a mere shadow of freedom.  The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.  If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

In the views of many, Barnette is a high point in U.S. Supreme Court history and one of Justice Robert Jackson’s very finest judicial opinions.

It was, in the United States in 1943, just a coincidence that the Supreme Court decided Barnette on “Flag Day.”  In history, that coincidence is an added dimension of the decision’s teaching power.

*          *          *

Some links—

  • West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;
  • a 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;
  • a 2012 Jackson List post, “Arguing Barnette”—click here; and
  • a 2010 Jackson List post, “The Newest Barnette Sister”—click here.

—————–

This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

 

TLP in PHL

The Longstreth Principle (TLP) holds that every time you watch a baseball game, you will see something you’ve never seen before.  This event/occurrence, sometimes just improbable and odd, sometimes also amazing, is thus called a “TLP.”

At yesterday’s game in Philadelphia (final score: Milwaukee Brewers 12, Phillies 3), I saw Brewers catcher Erik Kratz [Who, right?] double in the second inning.  The Brewers then were leading 2-0 (runs scored in the first).  But the second inning ended with Kratz stranded on second and no runs scored—his double meant nothing.

In the bottom of the third, the Phillies scored 3 times to take the lead, 3-2.  That still was the score when Kratz next came up, in the 4th, with one out and no one on.  Phillies pitcher Jake Arrieta promptly hit him in the shoulder.  Next batter:  double play, end of inning.  So Kratz’s at-bat again meant nothing.

He next came up in the 6th.  The score was still 3-2, Phillies.  But the Brewers were threatening (see more on that below)—2 men on, only one out.

Arrieta again hit Kratz with a pitch.  So there’s a TLP, at a couple of levels:  one pitcher hits one batter with pitches twice in one game.  (And it was Jake Arrieta, a big name/star/former Cy Young award-winner, hitting Erik Kratz, who is, um, not yet a household name.)

But that was not the best TLP that I saw yesterday.  It came in the top of the 6th inning, just mentioned.  The Brewers were trailing 3-2.  Travis Shaw (3B), leading off, bounced to pitcher Arrieta, who made a horrible throw to first that pulled the 1B way off the bag, but he still had time to make the catch and get back and touch first before Shaw arrived because he did not run it out hard—bad mistake, one out.

And then the TLP began:  Ryan Braun (LF) was awarded first base on catcher interference.  Then Jonathan Villar (2B) walked.  Then the much-noted (well, noted above) Erik Kratz was hit by a pitch—bases loaded.  That was it for Arrieta—the Phillies pulled him after 5.1 innings, leading 3-2, leaving the bases loaded.  They brought in a pitcher named Luis Garcia.  He promptly got Brewers SS Orlando Arcilla to strike out, badly.  So bases loaded, two outs.  And the Brewers pitcher was coming to bat.  So they replaced him with a pinch hitter, Ji-Man Choi.  He fell behind in the count, and then got back to 3-2.  And then he, a lefty, lined a homer down the left field line, just inside the foul pole.

So that was, for me, yesterday’s TLP:  three batters got on base, none by getting a hit, each in a different way, followed by a grand slam home run.

Oh, and Erik Kratz?  He’s age 37.  He played many years in the minors before making it to the majors in 2010.  Since then, he’s had a fine, journey-man, but not starring career.  And, okay, he’s not had so many at-bats this year.  But he was hitting .500 when the game started yesterday.  And after his opening double and then two HBPs, he flied out, and then, on a poorly-fielded hit to the pitcher, got to second base when the pitcher threw the ball away.  So Kratz went 1-for-3.  The game dropped his average a little bit.  But unless you get all picky about him having only 19 at-bats, his .474 makes him one of the very leading hitters in the National League.

#thebestgame

At Hickory Hill (June 1968)

For the Jackson List:

In late 1952, Justice Robert H. Jackson hired E. Barrett Prettyman, Jr., to be his law clerk.  Prettyman then was a third year law student at the University of Virginia.  He also was the son of Barrett Sr., who Jackson first met when he came to Washington in 1934.

The senior Prettymans (Barrett Sr. and his wife Lucy) and the Jacksons (Bob and his wife Irene) became friends, sometimes socializing together.  The men also were in the same line of work—they were lawyers, sometimes government lawyers, and ultimately federal judges, Jackson on the Supreme Court of the United States and Prettyman Sr. on the U.S. Court of Appeals for the District of Columbia.

“Young Barrett” began his clerkship with Jackson in July 1953.  Prettyman did excellent work and Jackson enjoyed his company.  In early 1954, he asked Prettyman to stay on for a second year and he accepted.

During Prettyman’s clerkship, he had the experience of visiting Jackson at his home, Hickory Hill, in McLean, Virginia.  Prettyman would deliver law books, legal briefs, and other materials to Jackson at home on weekends.  When Prettyman arrived, he typically would find Jackson working on the screen porch off the kitchen.  They would talk a bit, Prettyman would hand over his deliveries, and then he would leave Jackson to his work.

Justice Jackson’s health failed during Prettyman’s clerkship.  After a major heart attack in spring 1954, Jackson recovered enough to resume work that summer.  In the fall, only a week into the Court’s new term, Jackson suffered a fatal heart attack.  Barrett Prettyman thus was Jackson’s law clerk for a little over a year.  In what would have been the remainder of Prettyman’s second clerkship year with Jackson, Justice Felix Frankfurter and then, following his appointment as Jackson’s successor, Justice John M. Harlan, each employed Prettyman as a law clerk.  He thus had the distinction of clerking for three Supreme Court justices during a two-year period.

*          *          *

During his Jackson clerkship, Barrett Prettyman passed the District of Columbia bar examination and was admitted to law practice.

After some years in private practice, Prettyman became a special assistant to U.S. Attorney General Robert F. Kennedy.  As Attorney General, Kennedy was serving in the Cabinet office that had been Robert Jackson’s during 1940-41.

Some years earlier, Robert Kennedy, his wife Ethel, and their growing family also had become occupants of Bob and Irene Jackson’s former home, Hickory Hill.  It was Robert Kennedy’s home, and famously so, for the rest of his life.

*          *          *

On June 4, 1968, after winning California’s Democratic presidential primary, Senator Robert F. Kennedy was shot at the Ambassador Hotel in Los Angeles.  Gravely wounded, he was taken to a hospital where doctors worked to save his life.  It soon was clear that the prognosis was bleak.

Barrett Prettyman was in the Midwest when he learned that Senator Kennedy had been shot.  Prettyman contacted a colleague in Los Angeles and asked how he could help.  He was told to join former astronaut John Glenn, a close Kennedy friend, and others at Hickory Hill, where they were caring for the younger Kennedy children and preparing for horrible news.

Prettyman arrived at Hickory Hill on the evening of Wednesday, June 5, 1968.  He talked to Glenn and others.  Glenn announced that he was going upstairs to get some sleep, and that Prettyman should wake him when the call came from Los Angeles.  Prettyman wandered the ground floor of the house.  He walked back into the kitchen, turned right, looked out onto the screen porch, recalled happy visits to that place.…

Prettyman laid down on the living room sofa and tried to sleep.  It did not come.  He was awake when the call came, sometime around midnight local time.  He then went upstairs, woke John Glenn, and reported that Senator Kennedy was gone.

My friend Barrett Prettyman, who lived on for almost fifty more years after June 1968, shared these memories with me and others many times.  One of his tellings, captured on video:

I saw Barrett choke up every time he recalled and tried to speak about the loss of Robert F. Kennedy.  That is, still, the only proper reaction.

—————–

This post was emailed to the Jackson List, a private but entirely non-selective email list that reaches many thousands of subscribers around the world. I write to it periodically about Justice Robert H. Jackson, the Supreme Court, Nuremberg and related topics. The Jackson List archive site is http://thejacksonlist.com/.  To subscribe, email me at barrettj@stjohns.edu. Thank you for your interest, and for spreading the word.

Richard Goodwin, Husband of…

A brilliant man, Richard N. Goodwin, died on Sunday at age 86.  He was, famously, an aide, speechwriter, and policy assistant to Presidents John F. Kennedy and Lyndon B. Johnson, then a manager of Senator Eugene McCarthy’s 1968 New Hampshire primary campaign, and then an aide to Senator Robert F. Kennedy.

Earlier, Goodwin had been a top Harvard Law School student and then a law clerk at the U.S. Supreme Court to Justice Felix Frankfurter.

Goodwin also wrote noted, important books, and a play.

He also had a family.  He had sons, and he was married for more than forty years to historian Doris Kearns Goodwin.

The Boston Globe, in its obituary headline yesterday, described Richard Goodwin as a “Kennedy speechwriter and husband to Doris Kearns Goodwin.”  On reading that, I thought that the second half of it was odd—Dick Goodwin was a giant in his own right, not someone whose greatness since 1963 or across the span of his life was defined by his wife’s name, prominence, and accomplishments.

On further thought, I like it.  In terms of name recognition and public visibility, at least in recent decades, Doris Kearns Goodwin outranked Richard Goodwin.  By that measure, the Globe headline simply has things right.

I also like it as a measure of social progress.  Think of all the women who, in years past, whatever their own accomplishments, got tagged in headlines and elsewhere as Mrs. Someone or Wife of Whomever.  Think of all the men who were lifted to top billings, above their female partners, by reflexive gender privilege.

The Goodwin headline reminds us that none of that was right, and in that way it is a small sign that, in this regard at least, times are better.  Every person is a life of its content.  And each person might be partnered with another who brings added, and sometimes lots of added, value.

RIP and thank you for your great life, Mr. Goodwin.