No, Progressives Don’t Want Fair Debate Fact Checks

by David French

If anyone wondered whether progressive partisans view the mainstream media as little more than adjuncts and foot soldiers in their ideological enterprise, the growing calls for live debate fact checking should remove all doubt. After all, if moderators asked questions designed to elicit standard candidate responses, then the debate will be a lie-rich environment — on both sides. Clinton and Trump are both brazen liars, sticking to obviously false stories long after the facts are known. 

And make no mistake, this hurts Clinton more than Trump. Her campaign is built around the notion that Trump is uniquely dangerous and deceptive — that she’s responsible and “steady” while he’s a loose cannon who can’t be trusted with, well, anything. Show that she lies like he does (and she will lie on matters great and small), and voters are treated to the dreaded notion of equivalency.

But progressives seem to believe — with much justification — that if moderators were given free reign, then they’d focus their efforts on Trump. Thus the calls — the howls, even — for someone, anyone to call out Trump in real time for his inevitable lies, exaggerations, and outright expressions of ignorance. If the debate moderators won’t do it, now they want to networks to scroll text during the debate itself. 

As Jake Tapper pointed out on a recent episode of “Keepin’ it 1600” — my favorite left-of-center political podcast — candidates tend to repeat their lies, and good moderators can anticipate and address the common falsehoods in the question itself. We saw good moderators do this in the primary debates, when they sometimes confronted candidates with video montages of past statements — montages that made outright lying much more difficult. Moreover, effective campaigns can and should immediately broadcast their own fact checks. 

If moderators take it upon themselves to fact-check (really, to debate the candidates), then it is easy enough not just to put their thumb on the scales, but to throw their whole body on one side of the balance. Choose a topic that one candidate tends to lie most about (for example, Trump’s incredible and sustained insistence that he opposed the Iraq war) while ignoring the opponent’s favorite falsehoods, and the moderator could perhaps decisively sway the debate. Yes, facts are facts, but human beings can choose which facts to focus on, and it is progressives’ obvious hope that moderators will do their “duty” and give Hillary a pass. 

If they don’t, then the results can be ugly indeed. This CBS report — from back in the day when the media had generally cast its lot with Barack Obama — is a classic. Are we sure Hillary wants live fact checks?

Your Sunday Morning Chuckle

by Michael Potemra

From a book review in this morning’s L.A. Times: “While [novelist Cixin] Liu’s humanity on the whole is conservative, some characters . . . are determined to save civilization at all costs.”

Yes; while conservatives are pretty divided this year, we can at least agree on our indifference to the project of saving civilization.

The Lesson Ted Cruz Taught Us

by David French

The dominoes are falling – as we knew they would. On Friday Ted Cruz endorsed Donald Trump, just weeks after a mic-dropping moment at the Republican National Convention, where he pointedly refused to endorse the man who insulted his wife and accused his father of conspiring to kill JFK. Instead, in the face of a chorus of boos, he urged delegates to vote their conscience. The implication was clear – a conservative of conscience should not support Trump.

Whatever. Now he’s on the Trump Train, and in heeding the GOP conductor’s call of “all aboard” he’s teaching us once again an important lesson about the contemporary American political elite. They’ll take risks to achieve upward mobility, but the prospect of truly diminished influence is apparently too terrifying to contemplate. To quote the Hamilton musical, once they get in the “room where it happens,” they just don’t want to leave.

That’s why you saw fading Republican stars jump on the Trump Train early – he was their hope for continued relevance. That’s why you see establishment Republicans falling all over themselves to endorse Trump despite his manifest ignorance, mendacity, and unfitness. They want to remain in the establishment. That’s why religious right leaders keep endorsing one of the sexual revolution’s most ardent practitioners. They can’t abide the thought of political irrelevance. They all do it by convincing themselves – down to the very core of their beings – that the nation would be worse off without their unique talents, wisdom, and judgment.

Let’s be clear, between the Republican convention and this weekend, absolutely nothing changed about either Donald Trump or Hillary Clinton. Trump and Clinton are the same politicians with the same towering self-regard and same unfitness for the presidency. Trump is the exact same person who Cruz once said could “plunge” this nation “into the abyss.” Clinton is the exact same person we’ve seen throughout a quarter-century of dreary, corrupt years in national public life. What changed is all this “pressure” I keep hearing about. “The pressure is building,” people say. It’s time to get in line behind Trump.

What pressure? You might get primaried? The terrifying Reince Priebus might get angry? You might – gasp – lose your Senate seat? Good heavens – the nation just can’t survive without Cruz in the Senate!

We’re all replaceable. All of us. I’m reading Nathanial Philbrick’s Valiant Ambition, and I’m struck by the extent that perhaps the closest thing to an irreplaceable person in all of American history – George Washington – intentionally exposed himself to British volleys. Why? Because he knew what great commanders have known for millennia — while there are substitutes for even the best generals, there is no substitute for valor. That’s no argument for mindless recklessness (Washington hardly led every charge), it does reflect the reality that there are times when you pledge your life, your fortune, and your sacred honor for the cause you hold dear.

Similarly, while there are substitutes for any senator, there is no substitute for respect for the values and constitutional principles that made this nation great. And if a politician has to expose himself to Reince’s public relations peashooter to — quoting Cruz himself at the convention – “defend our freedom” and be “faithful to the Constitution,” then by God you do it. Too bad Ted couldn’t. Perhaps someone else will.

The ‘Act of Production’ Privilege Does Not Explain DOJ’s Immunity Grant to Cheryl Mills

by Andrew C. McCarthy

As explained in my preceding post, there appears to be no good rationale for the Justice Department’s decision to grant Cheryl Mills immunity from prosecution for any incriminating data on her computer in exchange for her agreement to surrender the computer. The Justice Department could simply have issued a grand jury subpoena requiring Mills to hand over the computer. Nevertheless, this being a legal discussion, I wouldn’t disappoint you by saying there are no caveats.

I should thus address what’s known as “act of production” privilege. It is derived from the Fifth Amendment privilege against self-incrimination, reflecting the salient difference between (a) a physical object, and (b) the potentially incriminating testimonial implications of surrendering that object to investigators.

The easiest way to think about this is to consider the difference between arrest and interrogation. If, as an investigator, I arrest you for armed bank robbery, I am entitled to get any evidentiary benefit your physical person gives my case. For example, I can put you in a line-up to enable eyewitnesses to identify you as the robber, or I can search your pockets for the money and the gun. But the Constitution bars me from coercing you to make any statements that would help me prove your guilt. Under the Fifth Amendment, you have the right to remain silent.

These same principles operate with respect to physical evidence that is in your possession, even if it is not located on your physical person.

There are some situations in which complying with a subpoena can be the functional equivalent of admitting guilt. Let’s say I’m a prosecutor in a drug investigation. I issue a subpoena demanding that X produce any ledger of illegal narcotics transactions in X’s possession. Turns out that X does possess such a document, but his lawyer realizes that, if X hands the document over to me, this would be an implicit confession that (a) the document is, in fact, a ledger of illegal drug deals, and (b) X has been in possession of it. So, if X were to comply with the subpoena, which the law requires him to do, I would obtain not only the physical ledger, the contents of which I can use in a drug conspiracy prosecution against X; I would also get a windfall: what amounts to testimonial admissions by X that would help me prove his knowing participation in the drug conspiracy.

Obviously, X does not want to give me the ledger. Yet, X knows that he has been issued a lawful subpoena for this physical evidence. If I later find out that he has withheld the ledger in defiance of the subpoena, I could prosecute him for obstruction of justice and contempt.

To resolve this dilemma between (a) the lawful duty to comply with a subpoena demanding production of physical evidence and (b) the constitutional privilege against admitting guilt, the prosecutor grants a limited form of protection known as “act of production” immunity.

Under this arrangement, X must surrender the ledger, and if there is information in the ledger that incriminates X, the prosecution may use that information against X. But the prosecution forfeits the ability to use against X the fact that X, by surrendering the ledger, effectively admitted both that it was a drug ledger and was in X’s possession.

As you can imagine, this is very routine in law enforcement.

What is the antithesis of routine, however, is what happened in connection with the potentially incriminating computers of Cheryl Mills and Heather Samuelson. These Clinton aides got an extraordinary break: grants of immunity, not for the act of producing their computers, but for the potentially incriminating contents of the computers. Extending our hypothetical above illustrates the absurdity: It would be as if, in order to get X to surrender the drug ledger in his possession, the prosecutor agreed not to charge him with any drug crimes.

The Justice Department’s handling of the Mills and Samuelson computers is not a routine example of “act of production” immunity. It is an inexplicable conferral of immunity from the incriminating effect of physical evidence – physical evidence that the Justice Department could easily have acquired by subpoena without making any concessions.

Why Did the Obama Justice Department Grant Cheryl Mills Immunity?

by Andrew C. McCarthy

Well, what would Friday be without the latest document dump from the Clinton email investigation? Yesterday afternoon, with the public in distracted anticipation of the coming weekend and Monday’s Clinton-Trump debate showdown, the FBI released another 189 pages of interview reports.

Along with this document dump comes remarkable news: The Obama Justice Department reportedly gave top Clinton aide and confidant Cheryl Mills immunity from prosecution for any incriminating information located on her personal computer.

According to House Oversight Committee Chairman Jason Chaffetz (R., Utah), the limited immunity was granted in order to persuade Ms. Mills to surrender her laptop computer so the FBI could check whether classified information was stored on it.

This is very strange. There was no need to grant concessions to Mills. The Justice Department could have required the production of the computer by simply issuing a grand jury subpoena. And had there been any concern that Mills would not cooperate, would destroy the computer, or would “misplace” it (as Team Clinton claims to have misplaced so many Hillary devices), investigators could have applied for a search warrant and seized the computer.

In normal cases, the Justice Department does not grant immunity in exchange for evidence when it has lawful power to compel production of that evidence.

Mills is not alone. Apparently her subordinate, longtime Clinton aide Heather Samuelson, was given the same deal.

Unbelievably, Mills and Samuelson, who are lawyers, were also permitted to represent Hillary Clinton in the very same investigation in which, we now learn, they were personally granted immunity from prosecution. That’s apart from the fact that both of them were involved as government officials at the time they engaged in some of the conduct under investigation – a circumstance that, by itself, should have disqualified them from later serving as lawyers for other subjects in the same the investigation.

As readers may recall, I have been trying to draw attention to questions about immunity in the Clinton emails investigation since last spring (see here and here). That was when we first learned that some form of immunity had been given to Brian Pagliano. He is the Clinton family employee who serviced then-Secretary Clinton’s unauthorized private server and, astonishingly, later drew a large State Department salary while continuing to be paid on the side by the Clintons.

As I explained at the time, it seemed highly likely that Ms. Mills, too, had been granted some form of immunity before agreeing to speak with the FBI. After all, she was a key player in events regarding which the FBI was conducting a criminal investigation, and she had previously declined to be interviewed by the State Department’s inspector general. In addition, we now know that, on advice of counsel, she refused to answer many questions when deposed by Judicial Watch regarding the email scandal. We can thus surmise that Mills had concerns about criminal jeopardy. We also know that her lawyer, Beth Wilkinson, aggressively – and successfully – lobbied the Justice Department to prevent the FBI from questioning Mills about topics of great significance to the investigation. Based on all this, it would be very surprising to me if Mills had not been given a “proffer agreement” form of immunity before agreeing to an FBI interview. (As I’ve outlined in columns linked above, in a proffer agreement, known in prosecutor jargon as the “queen for a day” arrangement, the Justice Department agrees – with some caveats – not to use against the person any statements made during the interview).

To this point, we still do not have a clear picture of whether Mills was given any kind of immunity in exchange for agreeing to an FBI interview. We have now learned, however, that she did not surrender her private laptop computer until she received assurance – in the form of immunity – that she would not be prosecuted if the FBI found any incriminating information on it. (Ms. Wilkinson, told the Associated Press that Mills got immunity only for the computer, not for the FBI interview … but Wilkinson refused to show the immunity agreement to the AP.)

Mills’ subordinate, Heather Samuelson, who is also represented by Wilkinson, reportedly got the same immunity deal as Mills.

The FBI had abundant reason to suspect that there was classified information improperly stored – i.e., potentially illegally stored – on Mills and Samuelson’s computers. These devices had been used in 2014 (i.e., about two years after Mills and Clinton had left the State Department) in the process of reviewing the 62,000 emails stored on Clinton’s homebrew server. It was by this process that Clinton determined which emails related to government business and would be surrendered to the State Department, and which were (purportedly) private and would be retained by Clinton. (We now know that thousands of what Clinton claimed were “private” emails were actually government-related, that some even contained classified information, and that Clinton and her minions attempted to destroy all of them – notwithstanding that destroying even one government file is a felony.)

Because thousands of emails containing classified information were included among the 62,000 reviewed on the Mills and Samuelson computers, and because data usually remain stored in the memory of a computer even if a deletion attempt has been made, it was a good bet that the Mills and ­­Samuelson computers contained classified information.

It can be a felony to mishandle classified information by transmitting it to, or storing it on, an unclassified system. Moreover, it constitutes a threat to national security (and to informants who risk their lives to acquire intelligence for the United States) to leave classified information on a non-secure private computer that can easily be hacked or otherwise infiltrated. Consequently, the Justice Department had the power and the duty to take custody of the Mills and Samuelson computers.

It does not matter whether Mills and Samuelson were concerned that their computers might contain incriminating information. The Fifth Amendment privilege against self-incrimination only protects a person from being forced to provide the government with self-incriminating information of a testimonial nature; it does not cover physical evidence.

Thus, when law-enforcement has reason to believe physical evidence could be relevant to a criminal or national-security investigation, it demands the production of that evidence. There is no need to bargain with the person in possession of such evidence by offering immunity from prosecution. Instead, the Justice Department simply issues a grand jury subpoena compelling the possessor to surrender the evidence, on pain of being jailed for contempt if she fails to comply. Further, if investigators fear that the possessor might destroy or tamper with the evidence rather than honor a subpoena, the prosecutor simply obtains a judicial search warrant, enabling the FBI to seize the evidence forcibly.

In a normal case, immunity-from-prosecution never enters into this equation. Immunity is a valuable concession that the Justice Department is only supposed to grant if there is no other way to get the evidence in question. Investigators are not supposed to “pay” for evidence the law empowers them to obtain cost-free. If, for example, a prosecutor surmised that a suspect’s hair might match hair recovered at the scene of a robbery, the prosecutor would not offer the suspect immunity from prosecution for the robbery in exchange for the suspect’s provision of a hair sample. The prosecutor would issue a subpoena requiring the suspect to provide the grand jury with a hair sample; if there was a match, the grand jury would then indict the suspect for the robbery.

As the Associated Press puts it: “By including the emails recovered from the laptops in the immunity agreements, the Justice Department exempted key physical evidence from any potential criminal case against [Hillary Clinton’s] aides.” It makes no sense to have done this … unless the Justice Department had already decided it would not prosecute Mills and Samuelson, no matter what the proof showed.

Add this to an already long list of startling concessions made to Mrs. Clinton and her confederates. The latest revelations raise other new questions that I will deal with in subsequent posts. For now, suffice it to say, yet again: It appears the Obama Justice Department’s goal was not to make a prosecutable case, but to make it appear that Hillary Clinton was “exonerated” after a thorough FBI investigation. 

But . . .

by Fred Schwarz

In this morning’s print edition of the New York Times, on the first page of the National section, these are the three headlines:

Obama Vetoes 9/11 Bill, but Congressional Override Is Expected

Iran Embassy Sits Empty, But the U.S. Cuts the Grass

13 Women Want to Testify Against Cosby. But Can They?

Think it might be time to invest in a new headline formula, guys?

Thanks for Everything, Vin Scully

by Michael Potemra

I’d like to say there wasn’t a dry eye in the house at Dodger Stadium tonight for Vin Scully Appreciation Night, but I don’t know if that’s literally true. I do know this: I was seriously choked up, and I didn’t even grow up listening to Vin Scully. And the people in the seats near me were clearly moved, folks for whom the voice of Vin Scully was a lifelong companion.

To say his career is amazing would be a serious understatement. He has been the broadcast voice of the same major-league sports team since the year the Korean War began. The Dodgers left Brooklyn in 1958, and Scully left with them, to become probably the most beloved local figure in Southern California.

At the ceremony tonight at Dodger Stadium, local celebrities including actor Kevin Costner, L.A. mayor Eric Garcetti, the legendary pitcher Sandy Koufax (how amazing is that! the guy pitched a perfect game five decades ago, and looked quite hale and vigorous tonight), and current Dodgers ace Clayton Kershaw paid tribute to the retiring broadcaster. But it was especially heartening to hear some of the stories fans told during the pregame events. One gentleman said that, back in the Sixties, he was a student at UCLA, and not doing well there. He was getting a lot of C’s, and was depressed about it; so he wrote a letter to Vin Scully, asking how he, too, could become a sports broadcaster. Scully wrote him back, saying, Look, if you’re a student at UCLA, broadcasting is not what you need to do. You’re a lucky person and you have a lot of opportunities; you need to find something you love to do, do it, and get somebody to pay you to do it. The young fellow followed Scully’s advice, and has been a professor of geography for over three and a half decades. (I know, being a professor of geography doesn’t sound cool. But I also know that, to people who don’t edit magazine articles, editing magazine articles doesn’t sound cool. But Vin Scully was right: If you enjoy your work, even though it might not be considered glamorous work by the world at large . . . you are an incredibly lucky man. I totally believe in what that geography professor was saying.)

Another highlight was an anecdote from one of the speakers, who recounted that Scully once went to church before a World Series, and prayed not for a Dodgers victory, but that in the Series, there would be only heroes, and that nobody would be a goat. What a wonderful evocation of an earlier, truer morality; of sportsmanship, gentlemanliness, and nobility; of the desire for excellence on all sides; of something better than the chest-thumping glorification of “winning” at all costs, and the humiliation of anyone who stands in the way of our team.

Vin Scully represents something important in the American character. The American character has seen bad days, but we have to hope that it will see better ones.

Enjoy your retirement, Mr. Scully! You have run the good race.

Krauthammer’s Take: Ted Cruz’s Endorsement of Trump Is ‘Business as Usual’

by NR Staff

Affirming that Ted Cruz’s endorsement of Donald Trump helps the Republican candidate, Charles Krauthammer added that it is another example of normal politics:

It does help but I think David is right; this is about Cruz much more than it is about Trump. And when he says it makes him a little cynical, I would have to say that that’s an understatement. It should make you very cynical.

I love the way Ted Cruz said “after searching his conscience.” Whenever a politician says he is “searching his conscience,” you can assume it was a quick search of a very small space. I’m not saying anything personal about Cruz, but remember — he and Trump were the outsiders. And what was their calling card from the very beginning? “We don’t act like the Washington insiders. We don’t scratch each other’s back. We speak our conscience.”

Well, it turns out in the end that they do what you’d expect of any other candidates, which is why — I mean, I don’t denounce them or deplore what they are doing here. This is business as usual. But weren’t they the candidates who were against the business as usual? And I like Trump’s line, where he says, “We fought the battle. He was a tough and brilliant opponent.” Well, at the time he was a tough and “lying” opponent. And now, apparently, he is a brilliant opponent. This is politics. This is exactly what you’d expect, but it is not how they sold themselves.