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“Re-Purposing The Grand Jury”: The St. Louis County Prosecutor Implicitly Conceded The Need For A Trial

Here is the irony of St. Louis County Prosecutor Robert McCulloch’s announcement Monday night that a grand jury had declined to indict officer Darren Wilson for the shooting of Michael Brown: The entire presentation implicitly conceded the need for a trial.

McCulloch was at pains to persuade the public that the grand jury had extensively weighed all the available evidence, and that it pointed to the conclusion that Wilson had not committed a crime. He talked about witnesses who changed their stories once they were presented with knowable facts that contradicted their original claims. He discussed the forensic evidence suggesting that Wilson’s initial shots against Brown occurred during a struggle in or near Wilson’s police cruiser, and that Wilson only began firing again after Brown, who’d initially fled, began moving toward him again. He talked about the lack of agreement over the position of Brown’s hands when Wilson fired the second, fatal barrage of shots.

So far as I know, McCulloch was under no obligation to discuss this evidence publicly. Nor was he under any obligation to release the evidence into the public domain following his remarks, as he repeatedly pledged to do. He presumably did these things to assure us that the decision not to prosecute Wilson was arrived at fairly and justly.

The problem with this is that we already have a forum for establishing the underlying facts of a case—and, no less important, for convincing the public that justice is being served in a particular case. It’s called a trial. It, rather than the post-grand jury press conference, is where lawyers typically introduce mounds of evidence to the public, litigate arguments extensively, and generally establish whether or not someone is guilty of a crime. By contrast, as others have pointed out, the point of a grand jury isn’t to determine beyond a shadow of a doubt what actually happened. It’s to determine whether there’s probable cause for an indictment, which requires a significantly lower standard of proof. That McCulloch appeared to turn the grand jury into an exercise in sorting out the former rather than the latter suggested he wanted no part of a trial.*

And, in fairness, it would have been extremely difficult to convict Wilson in a trial. But that’s a separate question from whether or not the verdict would be seen as legitimate after the fact. If McCullough was truly as concerned as he suggested tonight that the public accept the process that’s allowed Darren Wilson to walk away a free man, he had an obvious way to help ensure that this would happen. That he chose to avoid it demonstrates a rather appalling level of cynicism.

UPDATE: Some readers have argued that it would have been unethical for McCulloch to go to trial with a case he didn’t believe in. Two points in response: 1. Well, he went to the grand jury with a case he didn’t believe in, and it’s pretty unusual for that to happen, too. Clearly, the reason he did that was to make the process of letting Wilson off the hook look fair–again, not the typical purpose of grand juries, which are about establishing probable cause for an indictment. My point is that there’s a much better venue for establishing the fairness of the process (and for nailing down what actually happened)–a trial. Conversely, if this were simply about assessing probable cause, then the platonically correct move would have been to avoid a grand jury altogether, since McCulloch clearly didn’t think it exists. 2. Yes, it would have been hard to convict Wilson. But that doesn’t mean there wasn’t a case to be built. That McCulloch didn’t believe in the case says as much about him and his biases as it does the underlying facts. A different prosecutor could have easily come down differently.

 

By: Norm Scheiber, The New Republic, November 25, 2014

November 26, 2014 Posted by | Darren Wilson, Ferguson Missouri, Robert McCulloch | , , , , , , | Leave a comment

“GOP Anger Cannot Obscure Legal Reality”: On Immigration Policy, The Law And Facts Are On Obama’s Side

There is an adage every young lawyer learns: If you have the law, pound the law; if you have the facts, pound the facts. But if you have neither, pound the table.

The heated Republican rhetoric in response to President Obama’s immigration announcement is unquestionably table-pounding. His opponents have neither the law nor the facts on their side, so they have resorted to name calling and threats. House Speaker John Boehner (R-OH) issued a news release referring to “Emperor Obama,” while Sen. Ted Cruz (R-TX) accused him of being like a monarch and of having a “temper tantrum.” Some conservative legislators have called for censuring the president, or even initiating impeachment proceedings.

As a matter of law, however, it is absolutely clear that Obama has the authority to decide not to prosecute or deport anyone he chooses. Prosecutorial discretion is an inherent part of presidential power. The Supreme Court in United States v. Nixon declared: “The Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

No one believes that the federal government has to prosecute every violation of every federal crime or to deport every person who is eligible for deportation. The federal government, for example, long has not prosecuted people caught with small amounts of marijuana even though it violates the federal controlled substance act.

Choices about whether to prosecute are based on a wide array of policy considerations, including how to best allocate scarce prosecutorial resources and whether enforcing a law produces desirable outcomes. Constitutionality is another issue that can be taken into account. It is well established that the president does not have to enforce laws that he believes to be unconstitutional; indeed, to do so would violate his oath of office to uphold the Constitution. Nor does the president have to enforce laws that he believes to be unwise.

All of this is especially clear in the area of immigration policy. The Supreme Court long has recognized that immigration and deportations are closely tied to foreign policy, which is uniquely in the domain of executive power and control. The executive discretion granted by the Constitution certainly includes deciding whether to bring deportation proceedings. Throughout history, the federal government has chosen — for humanitarian concerns or foreign policy reasons — to not try to deport some individuals or classes of individuals, even though they are not lawfully in the United States.

Republican presidents have used this discretion as much as Democratic ones. In 1987, in a decidedly political move by a president who opposed the Sandinista regime, the Reagan administration took executive action to stop deportations of 200,000 Nicaraguan exiles. In 1990, President George H.W. Bush, to advance his foreign policy, stopped deportations of Chinese students and in 1991 prevented hundreds of Kuwait citizens who were illegally in the United States from being deported. In 2001, President George W. Bush limited deportation of Salvadoran citizens at the request of the Salvadoran president, ordering that deportation decisions include consideration of factors such as whether a mother was nursing a child or whether an undocumented person was a U.S. military veteran.

All of the Republican anger cannot obscure the legal reality: Obama has the authority to decide to suspend deportations. Likewise, the facts support Obama. A cruel aspect of immigration policy is that it often separates parents, who are in the United States illegally, from their children who are U.S. citizens because they were born in this country.

Nora Sandigo, in Miami, has a sticker in her car that says “Every child is a blessing.” It is a reminder for her as she drives around to pick up yet another child whose parents have been deported. Since 2009, Sandigo has taken legal guardianship of 812 U.S. citizens whose parents have been deported. “La Gran Madre” is what many call her, but she knows her limitations. “All I can do is hold back some of the bleeding. There is no way I can give 812 children the love and attention they need, but … the system is broken.”

It is estimated that there may be as many as 5 million parents in this situation. The irony is that Republican rhetoric for years has emphasized “family values,” but it is Obama who is acting in a profoundly pro-family way.

 

By: Erwin Chemerinsky, Dean of the University of California, Irvine School of Law and Samuel Kleiner, a fellow at the Yale Law Information Society Project; Published in The National Memo, November 24, 2014

November 25, 2014 Posted by | Immigration Reform, Presidential Powers, Republicans | , , , , , , , , | Leave a comment

“A Growing Fissure Within The Tea Party Movement”: Tea Party Nativists Seething Over Obama’s Immigration Reform Action

Even before President Obama entered the East Room of the White House to give his speech outlining a series of executive actions on immigration reform, some, though not all, national Tea Party factions were whipping up their followers into a nativist frenzy.

“This is by far the most serious communication I have ever sent,” wrote Steve Eichler, executive director of the 1776 Tea Party (aka TeaParty.org), in an email to supporters.  “Everything is at stake. Illegals will bankrupt our social, economic and financial systems. Terrorists will just blow it all to pieces. They’ll all be in our backyards in a matter of weeks, even days, if we don’t step up and demand action,” he warned.

That type of feverish nativism is no surprise coming from Eichler, who is also the executive director of the anti-immigrant vigilante group, the Minuteman Project. His email went on to predict “open rebellion” and “chaos” if Republicans don’t withhold funding for Obama’s executive order.

Echoing Eichler’s terror hysteria was one of the activists who helped shape the early Tea Party movement. Eric Odom, who now works for the Patriot Action Network, a Tea Party faction, also put forward the notion that executive action on immigration would somehow lead to terrorists destroying America.

What makes it so dangerous is that Obama’s announcement says to all of our enemies that now is the time to invade our nation’s borders. We’re no longer talking about innocent women and children riding trains to our borders then crossing with the hopes of gaining access to our welfare system. We’re talking about ISIS and other evil groups who want to embed individuals here with the plan of doing harm.Essentially, our President just made a proclamation that puts American lives, and the security of our nation, directly at risk. Obama said to the world that if they can get across our borders, we will not send them home. We will not enforce our immigration laws.

Grassfire, parent outfit of the Patriot Action Network, added “With his amnesty announcement in just a few hours, Obama will unilaterally defy the will of the people and Congress –becoming a threat to liberty.”

Judson Phillips of Tea Party Nation went even further in denouncing President Obama, arguing that the immigration actions were part of a diabolical plot. In a prebuttal to Obama’s speech, Phillips told Tea Party Nation members, “Today, Barack Obama is going to announce his long-cherished goal of destroying America.”

Phillips, a birther racist and advocate of limiting voting to property owners, isn’t new to nativist extremism. In 2011, his group mourned the falling birth rate of native-born Americans, and warned that “American culture” will soon perish since the “White Anglo-Saxon Protestant (WASP) population is headed for extinction.”

Eichler, Odom, and Phillips weren’t the only Tea Partiers to adopt an inflammatory pose. Echoing their sentiments was Kansas Secretary of State Kris Kobach, a favorite among Tea Party nativists, who warned portentously that President Obama’s executive actions and general “lawlessness” on immigration could lead to “ethnic cleansing.”

Congressman Lamar Smith (R-TX) also joined the fray, contending that President Obama’s immigration executive order is “declaring war on the American people and our democracy.”

“This is truly an emergency. There’s not a moment to lose,” wrote Tea Party Patriots co-founder Jenny Beth Martin to her group’s members last Wednesday. While other Tea Party groups are busy inflaming nativism sentiment, the Tea Party Patriots are crafting a plan to scuttle any immigration reforms.

Having already primed their members with the October release of the gruesome anti-immigrant video, The Border States of America, Tea Party Patriots are focused now on organizing opposition.

As a first step, they plan to “melt the phones to stop amnesty” by having their members contact Congress en masse to register opposition. The next step is to flood congressional offices with protesters. According to Martin, the group “must deploy our thousands of local affiliates to congressional offices all across the country, demanding that they cut off all funding from this order immediately.” But the Tea Party Patriots do not have the “thousands of local affiliates” as Martin claims; instead they have around 300 remaining active local groups.

They plan to deploy those remaining local groups, however, to pressure the new Congress to defund anything relating to immigration reform. Kevin Broughton, a spokesperson for Tea Party Patriots, noted, “We expect [the new GOP majority] to use the power of the purse to defund amnesty, especially those—and there were many—who ran against it.”

The group is also canvassing its membership base to gauge possible attendance for a noon rally on December 3 in Washington D.C. called by the founder of the House Tea Party Caucus, retiring congresswoman Michele Bachmann. The decision to possibly join Rep. Bachmann’s rally came after she declared on Wednesday that executive action on immigration will lead to a flood of “illiterate” voters.

Previous Tea Party Patriots anti-immigration rallies in Washington D.C., such as the muddled Immigration/IRS rally on June 19, 2013 on Capitol Hill have not been well attended, so larger attendance at a December rally would be an indicator of some success for efforts to promote nativism without one of the largest Tea Party factions.

Not all national Tea Party factions are in agreement with the Tea Party Patriots’ plan. Obama’s move on immigration has uncovered a growing fissure within the Tea Party movement over the centrality of nativism. Curiously, while Tea Party Patriots, Patriot Action Network, and the 1776 Tea Party were rushing to sound more and more xenophobic  (and fundraising off the issue), some Tea Party factions tried to dance around the immigration issue, while others stayed conspicuously silent.

Indeed, although many members of the FreedomWorks social network were outraged by the president’s announcement last week, the organization’s leadership chose to duck the issue. FreedomWorks completely sidestepped the topic of immigration, choosing instead to concentrate the organization’s message on tried-and-true Obama bashing.  In a pre-speech press release, FreedomWorks president Matt Kibbe took a page from the GOP establishment playbook, sticking to the line about the president being an “emperor” and railing against the “expansion of executive power.”

Said Kibbe, “The president’s announcements tonight have nothing to do with immigration. This fight has to do with whether or not we are a country with laws and a separation of powers designed to protect the will of the American people from the arbitrary actions of Washington insiders.”

As other Tea Party groups have dug in for a massive fight around immigration, FreedomWorks appears fixated on getting Congress to let the Export-Import Bank expire. In fact, many in the Tea Party movement have been suspicious of FreedomWorks because of their unwillingness to wholeheartedly embrace nativism.

Unlike all the other factions, Tea Party Express hasn’t uttered a peep about the issue. That could be because the group is hoping not to call attention to the pro-immigration reform stance that Sal Russo, a Tea Party Express co-founder, expressed in an article for Roll Call last spring.

Russo’s commentary, titled “Conservatives Need to Fix the Broken U.S. Immigration System,” called for an approach remarkably similar to that proposed by the president. “We need to make the 11 million people who are here illegally obey the law, pay taxes and come out of the shadows. We have to get them right by the law in exchange for legal status, but not unbridled amnesty,” he wrote.

In the past, these disagreements have caused strains between various organizations in the network that comprises the Tea Party movement. Obama’s executive order is the first major test of these policy differences in years, and Tea Party organizations may well be held to account for their positions.

Expect the caution initially evident among Republican leadership to vanish if the Tea Party successfully mobilizes anti-immigrant sentiment. Given the vitriolic nativist tone already circulating in Tea Party circles, and the fusion of nativism with hatred of the first African-American president, the coming mobilization could make the ugly rancor and racism that erupted during the passage of Obamacare look polite. At the same time, if supporters of human rights stand strong for immigration reform and actively combat nativism, it could protect immigration reform gains for the long term and even split the Tea Party.

 

By: Devin Burghart, The National Memo, November 24, 2014

November 25, 2014 Posted by | Executive Orders, Immigration Reform, Tea Party | , , , , , , , | Leave a comment

“Darren Wilson Walks”: No Indictment For Michael Brown’s Killer

Officer Darren Wilson will not face charges for the killing of Michael Brown in Ferguson, Missouri. The news came on Monday evening, when prosecutor Robert McCulloch announced that a twelve-member Grand Jury had declined to deliver an indictment.

The news brought to a close three months of deliberation, but not the controversy over what happened that day—or the national conversation over race and law enforcement that Brown’s killing started.

The August 9 shooting of Brown, who was black, by Wilson, who is white, set off protests and violent confrontations with police that lasted weeks. Behind those protests were long-standing grievances against Ferguson police and its political establishment. Residents of Ferguson, roughly two-thirds of whom are black, said they were routinely mistreated by members of the police department, which is overwhelmingly white. Among the evidence they cited: Statistics showing that African-Americans constituted a disproportionate share of traffic stops (86 percent) last year.

But exactly what happened on the streets of Ferguson that August day has never been clear. Everybody agrees that Wilson stopped Brown and a friend in the middle of the street—and that some kind of altercation followed. But there are different stories about when exactly Wilson shot Brown and under what circumstances. A key question has been whether Wilson felt that Brown posed a threat, to either the officer or to others.

The Grand Jury considered five separate charges, ranging from involuntary manslaughter (which is basically killing because of recklessness, and carries a maximum sentence of seven years) all the way up to first degree murder (which is basically killing with premeditation, and carries a maximum penalty of life). McCulloch, in a prepared statement, said that the Grand Jury became convinced by reams of evidence—including physical evidence and eyewitness testimony—that Wilson had reasonable grounds for shooting.

He added that eyewitness testimony was sometimes contradictory, and that some people changed their stories once confronted with physical evidence that undermined it. McCulloch also chastised media for reporting incomplete or incorrect evidence while the Grand Jury was deliberating.

McCulloch expressed sympathy for the Brown family and recognized that some would not accept the verdict. “I join with Michael Brown’s family,” McCulloch said, “in urging everybody to continue the demonstrations, continue the discussions, and address the problems in constructive rather than destructive way.”

By the time McCulloch made his announcement, most observers expected the Grand Jury to decide as it did. As Yishai Schwartz has explained in these pages, the law in Missouri and other states makes it difficult to convict police officers of murder, at least when the officers claim they acted in self-defense. As Gabriel Chin, a professor at the University of California-Davis, told the New Republic

The Ferguson grand jury’s decision not to indict was no surprise.  “A grand jury will indict a ham sandwich,” the saying goes, but that never applied to police.  Of course, society requires police to carry guns and orders them to use them when necessary; therefore, they get the benefit of the doubt in close cases.  I can’t recall an on-duty police officer being charged for homicide without clear and strong evidence of criminality; ambiguous, unclear, even suspicious circumstances are insufficient.

But critics have worried that McCulloch—who has close ties to the police department and whose father, a former officer, was killed by an African-American—would not pursue charges as vigorously as he could. McCulloch presented the Grand Jury with a wide array of evidence, without pushing them in one direction or the other. He also had Wilson testify in person. These choices were in some ways true to the original idea of a Grand Jury, which is supposed to be an investigative body. But they are relatively uncommon these days, since prosecutors more commonly use Grand Jury proceedings to build a case for indictments—leaving ultimate decisions of guilt and innocence to a trial. According to Chin,

If the prosecutor had wanted to bring charges, he could have proceeded by filing an information charging the officer with an offense, which would have resulted in a preliminary hearing before a judge who would have determined whether probable cause existed.  To proceed by grand jury rather than information and preliminary hearing meant that the prosecutor believed charges were unwarranted, but that he wanted the grand jury to at least share responsibility for the decision.  Under the circumstances, there is every reason to think that the prosecutor presented all relevant facts; early on, the prosecutor said he expected the testimony and other evidence to be released; if the presentation was biased or half-hearted then there will be consequences.

The prosecutor did err in his statement when he said “The duty of the grand jury is to separate fact from fiction.”  The grand jury is obliged to determine whether there is probable cause, not what the actual truth is.

National polls have found a sharp racial divide on the case, with non-whites much more likely to favor indictment. It would have taken the votes of nine grand jurors to make Wilson stand trial and just three of the jurors are African-American. But it’s not clear whether voting broke down along racial lines and, at this point, nobody but the jurors know what evidence was made available—and how convincing it might have been. McCulloch has said he plans to make the evidence public, for the sake of transparency—maybe as soon as tonight.

This is not the end of the legal saga. Wilson is subject to a federal investigation, to see whether he violated Brown’s civil rights. Most experts think he’s unlikely to be charged, as that’s even harder to prove than the direct criminal charges.

But the Ferguson police department is also under investigation, from the Justice Department, and that investigation could very well end in some kind of “consent decree” under which the police changed policies under close federal supervision. It’s happened that way in other jurisdictions where police have come under attack for mistreating racial minorities—and, as Rebecca Leber has noted, many experts think such arrangements have produced better policing and improved community relations.

 

By: Johnathan Cohn, The New Republic, November 24, 2014

November 25, 2014 Posted by | Darren Wilson, Ferguson Missouri, Michael Brown | , , , , , , | Leave a comment

“Hollowness Of GOP Arguments”: Where Was Republicans’ Concern for “Political Norms” When They Took The Debt Ceiling Hostage?

Else where on this site, Eric Posner argues that conservatives should celebrate President Obama’s immigration actions because they “may modify political norms that control what the president can do.” The idea, which will be familiar to everyone following the contretemps surrounding Obama’s immigration policy, is that Republicans will eventually be able to marshall the same powers Obama is asserting to more conservative ends.

But near the end of the article, Posner modifies his argument by observing that Obama didn’t actually create any new norms last week at all. Rather, he may have revived a long-dormant conservative inclination to “undermine the regulatory system itself,” from within the executive branch, by pushing the envelope of executive power. We’ve already been down this road before—only before, Republicans were at the wheel.

This is a crucial insight. You can’t understanding the shadowboxing over Obama’s immigration moves if you don’t recognize it as shadowboxing. To nearly a person, the conservatives complaining about the procedural implications of Obama’s actions are expressing substantive or political disapproval through other channels. The conservatives tenting their fingers, anticipating all the discretion a Republican president will use, would likewise have found reasons to support those acts of discretion whether Obama had acted unilaterally on immigration or not.

Two years ago, unilateral suspension of Obamacare requirements sat high on Mitt Romney’s 2012 agenda and Republicans loved it. They never considered it a threat to the right-size of the legislative branch, or worried that Mitt Romney was promising to exercise imperial powers.

Romney didn’t win, and thus his plan to dismantle Obamacare from within the executive branch never came to pass. But we don’t need to refer back to hypotheticals to expose the hollowness of precedential arguments like these. Three years ago, Mother Jones’ Kevin Drum identified several real instances in which Republicans ”figured out that old traditions are just that: traditions. There’s no law that says you can’t change them.”

Most of the examples are pretty arcane, and many evince a party committed to purpose, willing to use the rules to their advantage to win elections and shape policy, rather than a party contemptuous of democratic processes.

But the big glaring exception in all this, and the one that really underscores the argument that an abiding concern for traditions doesn’t really drive conservative opposition to Obama’s deportation relief, is the weaponization of the debt limit.

There, the precedent, and the danger to the constitutional order, was actually quite clear. Republicans in 2011 (and again, to less effect, in 2013) attempted to leverage their control over half of the legislature, to impose their substantive preferences on a Democratic president and the majority party in the Senate by using the threat economic calamity as a bargaining chip. To borrow from the right today, we had a situation in which the speaker of the House tried to usurp the Senate’s agenda-setting power and the president’s plenary power to determine which laws to sign and which to veto, by laying out an unprecedented choice between a right-wing vision without popular support, and default on the national debt.

The gambit paid off exquisitely in 2011 with the signing of the Budget Control Act, which brought us the indiscriminate spending controls of sequestration.

I don’t think there’s any way you can argue that Obama would’ve signed the BCA if you take the debt limit hostage-taking out of the equation. Boehner used the lawful powers at his disposal to settle a big fight over federal spending by fiat—remember the Boehner Rule?—except that since the legislature doesn’t enforce laws, the only way he could accomplish this was to threaten immense damage to the national and global economies as the price of non-compliance.

And it worked! It worked so well that he tried it again after Republicans lost the 2012 elections, by which point Obama had learned that Boehner’s leverage was actually illusory.

I think the Budget Control Act is a terrible law, and I think the precedent Boehner wanted to set would’ve been disastrous if it had taken hold. Fortunately, our political system proved resilient enough to prevent Republicans from turning this kind of brinksmanship into a matter of routine, and for that reason we don’t need to relitigate the normative questions Boehner raised over two-plus years of debt limit brinksmanship.

But if you dip into the archives at National Review—where we can now read about Obama’s similarity to Latin American military dictators—or into Ross Douthat’s old New York Times columns, which today center on the question of whether Obama is more like Caesar or a tin-pot caudillo—you’ll find that the right was much, much more concerned about whether Republicans were making wise tactical moves in debt limit negotiations, or whether conservatives would pocket satisfactory substantive concessions, in what was essentially a legislative mugging, than in questions of precedent.

Separation of powers questions almost never creeped in. Because conservatives were basically happy with what Republicans were setting out to accomplish.

 

By: Brian Beutler, The New Republic, November 24, 2014

November 25, 2014 Posted by | Conservatives, Debt Ceiling, GOP | , , , , , , | Leave a comment

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