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February 7, 2018


Professor Kennedy in her blog today brought us the Uncle Remus story of how Brer Rabbit outsmarted Brer Fox with his exhortation not to be thrown in the brier patch which, of course, Brer Fox did, only to be unable thereafter to catch and eat Brer Rabbit. She likened Democrats to Brer Rabbit and Nunes to Brer Fox. Democrats made quite a fuss over release of Nunes’ memo, objecting to its release when in fact, as one critic noted, the memo had less detail than CVS receipts he had seen. He is right; it is a limp rag of convoluted junk designed to cover Trump’s political posterior, and it did not. Brer Rabbit won. Professor Kennedy asked for comment and following, slightly edited, was mine.

Brer Rabbit’s clever use of briar patch psychology on Brer Fox worked, but I am not sure Nunes’s gaffe did not. It depends upon the audience, and Trump has roughly one third of the audience who believe that Democrats are treasonous, that global warming is a mirage etc. “because he said so.”

He now wants appointment of another special counsel to investigate the DOJ and FBI in his “investigate the investigators” campaign, a campaign clearly designed to undercut Mueller’s investigation and to cast doubt on Mueller’s final report (which Trump knows will be damning to his interests) when presented to the House for impeachment consideration.

I have written elsewhere that I think Mueller will not indict Trump (though I have been wrong before) but rather submit his final report to Congress for their action or inaction because there are legal questions about indictment of a sitting president and a dearth of case law on the topic. Mueller could, of course, allude to Trump as an unindicted co-conspirator in court filings, but I am guessing he will not.

Mueller can indict others of Trump’s inner circle, however, and the good news is that if Trump is impeached and removed from office he can himself thereafter be indicted for crimes both by federal prosecutors and State of New York prosecutors for state crimes committed within that state’s jurisdiction, all subject, I presume, to their respective statutes of limitations.

Nunes’s effort was a sideshow. Brer Rabbit (our minority) has won and we are now free out here in the briar patch. This November let’s leave our brier patches and other warrens, evict the foxes and reoccupy the hutch.      GERALD        E


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