Thoughts on New York Times Report on Trump’s Order to Fire Mueller

Thoughts on New York Times Report on Trump’s Order to Fire Mueller

President Trump’s desire, even with initial planning, to fire Special Counsel Mueller, is not by itself the crime of obstruction. People being investigated from time to time request the removal of a prosecutor based on alleged bias and that effort has not been prosecuted as obstruction. Ordinarily, obstruction centers on false statements, falsification, destruction of evidence, or misconduct with witnesses such as attempting to secure false testimony, trying to prevent testimony or other forms of witness tampering.

Moreover, removing Mueller would not stop the investigation which involves dozens of prosecutors and agents for whom another highly competent leader would be found.

Even so, the reported information, if true, holds perils for President Trump. It could certainly be evidence of an intent to suppress the truth which, if coupled with other obstructive events, could add to a case of obstruction.

Further, if Trump does submit to questioning, either before the grand jury or in an FBI interview, he will be asked about this and if there are false denials, then a traditional case of obstruction could be developed based on any false statements.

Read the New York Times article here.

 

Florida Dems May See Unintended Consequences in Vote on Felons Voting

This Fall, Florida’s voters will be able to vote on whether 1.5 million felons voting rights should be restored. Democrats may not have considered that their support for this amendment may backfire when it comes to Republican voter turnout.

If approved by 60 percent of voters, the amendment would restore voting rights to Floridians with felony convictions after they fully complete their sentences, including parole or probation. –Orlando Sentinel

Democrats could win the 60 percent vote needed to pass this amendment, but it’s not going to be easy. There are certainly good reasons to support restoring voting rights to most felons who have paid their debt to society, but the politics of this could backfire. Meanwhile, opposition to the measure, fueled by Republican voters, could harm Democrats in this year’s critical state races.

Coffey believes that with Florida’s known slim margins in elections, Democrats need to thoughtfully consider the outcome of every move they make leading up to this vote.

 

 

My Legal Reaction to Jeff Session’s on Marijuana

The Department of Justice (DOJ) clearly can reverse its non-enforcement of federal law and begin immediately to arrest sellers and distributors of marijuana irrespective of state laws. Because this would have such dramatic consequences for many who have relied on past practices of non-enforcement by DOJ, the Feds would logically give prior warning even though they are not legally required to do so. And they would presumably- either locally or nationally- establish criteria prioritizing states without medical marijuana laws before launching raids in states where it is a firmly established and widely accepted business.

But the US laws remain on the books for AG Sessions to prosecute aggressively if he so chooses. Many, if not most, federal judges and prosecutors will lack enthusiasm but must still follow the law. Meanwhile, many voters, especially Millennials otherwise bored with current politics, will be energized to oppose these measures.

The marijuana issue was a sleeping time bomb during the 2016 elections getting scant attention as Millennials and others who care about the issue assumed nothing could change so they could ignore it, complain about both candidates and do little about the election. Many may awaken abruptly from this slumber.

Read the Forbes article Coffey is quoted in here.

The Virginia House Race

With the latest controversy around the Virginia State House election recount, I believe everyone should just trust the process.  Virginia law states that in the event of a tie, the state Board of Elections will draw lots to determine the winner.
This election is remarkable with so much on the line for Democrats who want to reshape the political power structure in Virginia. The recount was done lawfully, and the judicial panel awarded an additional vote to Republican Delegate David Yancey which tied the race. This is just another reminder that one vote can change the outcome of an election.
Coffey often comments on election law and currently serves as the Chair of the Federal Judicial Nominating Commission for South Florida.
For more information on the Virginia House Race, click here.

Coffey on MSNBC: Mike Flynn could reveal Trump’s motives on Russia

Via Shareblue Media

Michael Flynn’s tenure as Donald Trump’s National Security Adviser was extremely brief, but it could still prove crucial to special counsel Robert Mueller’s investigations into the Trump team’s ties to Russia.

As one former U.S. attorney noted, the “clearly indictable” Flynn could break open the case for collusion and obstruction of justice with what he knows about his former boss.

It was never made clear by the administration whether Flynn had resigned or been fired. What was evident, though, was that Flynn was severely compromised, the White House knew about it, and protected him anyway.

Flynn lied about his communications regarding sanctions with Russian agents, of which the White House freely admitted knowledge. And as former FBI Director James Comey delved deeper into his investigation of Flynn’s activities, Trump put the pressure on.

“I hope you can see your way clear to letting this go, to letting Flynn go,” Trump said, according to Comey’s meticulous timeline of the events. “He is a good guy. I hope you can let this go.”

As Comey told the Senate Intelligence Committee in June, “I took it as a direction to get rid of this investigation.”

One of the many lingering questions is why Trump was so insistent that Comey back off of Flynn. It’s hard to believe Trump would behave in such a way solely for the benefit of someone else; rather, this kind of abuse of power from Trump strongly implies that there was something paramount in it for himself, too.

Former U.S. attorney Kendall Coffey made just that point on MSNBC.

Noting that the next step for Mueller could very likely be Flynn — someone who is “clearly, frankly, bluntly indictable” and “strategically placed” to know a lot about Trump and Russia — Coffey highlighted Trump’s pressure campaign on Comey.

“The question of, what was Trump’s motive in trying to allegedly tell Comey, ‘Please go easy on the guy’ — was Trump trying to protect a good guy and a public servant? Or was Trump trying to protect something about himself?”

“That’s a question that Michael Flynn should be able to answer,” Coffey noted.

After his campaign coworkers Paul Manafort and Rick Gates were indicted by Mueller, and campaign official George Papadopoulos pleaded guilty for lying to federal agents, Flynn’s name has been in the air as one of the nexton Mueller’s list.

Comey was not cowed by Trump’s pressure, which led to his firing.

Mueller is also clearly unintimidated by Trump, despite repeated smear campaigns and attacks on his credibility.

And as California Democratic Rep. Ted Lieu put it plainly, if Trump tried to fire Mueller just as he did Comey, “Congress would begin impeachment proceedings.”

Flynn surely knows a good deal about the dark truth hiding behind all the lies from this administration. And it is Mueller’s job to unearth it and give the American people the facts about what was done to our democracy — and exactly who was behind it all.

Is it wrong for Trump to interview US Attorney Candidates?

While this is an unusual practice for a president, I believe there is nothing necessarily wrong about interviewing candidates.

US Attorneys represent the Executive Branch, and personal attention from the president is usually appreciated and could give an applicant direct access to seek, for example, more resources for a crime problem. It has also long been understood that the selection process is political, but the service of a US Attorney, once appointed is totally apolitical.

Read a CNN article on the matter here.

10th patient at nursing home dies after Irma

SFGATE

SFGATE.com

HOLLYWOOD, Fla. — A 10th elderly patient has died after being kept inside a nursing home that turned into a sweatbox when Hurricane Irma knocked out its air conditioning for three days, even though just across the street was a fully functioning and cooled hospital.

Hollywood police said Thursday in a news release that 94-year-old Martha Murray died Wednesday. They said her death was related to the problems at the facility following Irma. The first eight patients from the Rehabilitation Center at Hollywood Hills died Sept. 13, three days after Irma struck. The ninth died Tuesday.

From the perspective of Florida Gov. Rick Scott and relatives of those at the Rehabilitation Center at Hollywood Hills, criminal charges are warranted. But under Florida law, a prosecution might be difficult. Two of three former state prosecutors contacted by the Associated Press had doubts as to whether Dr. Jack Michel, the home’s owner, or any of his employees will be charged.

All agreed that any criminal prosecutions will hinge on whether the nursing home staff made honest mistakes or were “culpably negligent.” Florida defines that as “consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.”

Hollywood police and the state attorney’s office are investigating.

The home has said it used coolers, fans, ice and other methods to keep the patients comfortable — and that might be enough to avoid prosecution.

“There is a difference between negligence, which is what occurs when you are not giving a particular standard of care, versus culpable negligence,” said David Weinstein, a former state and federal prosecutor now in private practice. “So if they are doing everything humanly possible given the circumstances and this all still happened, it may be negligent and provide the basis for a civil lawsuit, but not enough for criminal charges.”

Retired University of Florida law Professor Bob Dekle, who prosecuted serial killer Ted Bundy as an assistant state attorney, said he doubted charges would be brought.

“I would rather be a defense attorney on this case than a prosecutor,” Dekle said. “There are some cases that are better tried in civil court than criminal and this might be one of them.”

Former U.S. Attorney Kendall Coffey disagreed.

“Given the magnitude of the tragedy and the apparent availability of a hospital 50 yards away, prosecutors are not going to accept that this was an unavoidable tragedy,” he said.

Terry Spencer is an Associated Press writer.