Below is my column in The Hill newspaper on issues that appear to be on hold pending the election results. Former Vice President Joe Biden went so far this weekend to say that voters “don't deserve” to know his position on packing the court, reiterating that voters will have to wait to vote him for an answer. It has a familiar sound to those who have seen The Truman Show movie.
Here is the column:
Joe Biden was asked again this week if he would grab the Supreme Court if he were elected president. Instead of answering, Biden smiled characteristic of the character from the Truman Show and offered his version of the classic line from the 1998 film: “Good morning, and if I don't see you, good afternoon, good evening, and good Night."
From the trial to the Russia investigation to the Michael Flynn case, Washington is back on Seahaven Island where "you can't go any further before you come back." In the film, Truman Burbank was the only person in the dark. In this remake, viewers are the voters in the dark, and only the main characters know the truth.
Despite once denouncing packing in court, as did the late Judge Ruth Bader Ginsburg, Biden has refused to respond whether he would support the plan put forward by Democrats, including fellow campaigner Senator Kamala Harris. This week, Biden irritably replied to reporters, "You will know my opinion about packing in court when the election is over."
This is a really alarming position for a candidate. Court wrappings are widely seen as a threat to the destruction of a fundamental institution in our constitutional system. However, Biden refuses to say whether he would bring a hatchet to the Supreme Court for the past two centuries. However, the future of the judiciary is just one issue that is still open.
When it became known that United States attorney John Durham had exposed serious and possibly criminal conduct in the investigation against Russia, the Democrats called for his report not to be released before the elections. Indeed, federal regulations require prosecutors to avoid "investigative steps or criminal charges for the purpose of influencing an election or for the purpose of imparting advantage or disadvantage to a candidate or political party". However, important cases often affect elections and are only sealed in amber after the votes have been counted.
Durham's investigation focuses on behavior in the elections four years ago. His subjects of investigation are not candidates for this ballot, but federal officials involved in investigating possible collusion between Russia and the US Donald Trump Campaign in 2016. This turned out to be unfounded. Ultimately, there was no evidence of collusion, let alone someone who had committed collusion-related crimes. Indeed, disclosed evidence shows the FBI was notified early on that the allegations were not only dubious, but possibly disinformation from Russia.
In the past few weeks we have learned that the main source Christopher Steele used in his now infamous dossier is believed to be an agent from Russia. Recently released material also revealed that then-CIA director John Brennan had informed President Obama in 2016 of an alleged plan by Hillary Clinton to tie then-candidate Trump to Russia in order to “prevent the public from using a private email server distract ". Burn's handwritten notes seem extremely serious on her face. Indeed, the claim was serious enough to inform the president.
It mirrored intelligence reports submitted to the FBI and then to Director James Comey. When asked about the report last week Comey simply said he hadn't "rang". What his bell is ringing is exactly what the Durham investigation could reveal. All of this recent evidence builds on other earlier facts, from the Clinton campaign to the funding of the dossier to Steele misrepresenting his sources and conclusions.
There are arguments in favor of delaying Durham's publication of the report so close to the election. However, there is a lack of assurances that we will ever know the results after the election. If Democrats control both houses of Congress, they are unlikely to have any hearings on the report. Democrats on the intelligence committees have said they want the investigation to end by 2016 so that we can all "look ahead rather than backwards." If Biden becomes the next president, the Justice Department could suspend or curtail the investigation, or even consider his final report privileged.
Democrats aren't the only Washington officials leaving the future open. In the case of Michael Flynn, Judge Emmet Sullivan appears to be waiting for the election before making a final decision. Sullivan was due to convict the former national security adviser two years ago. Instead, he held a hearing in which he made worrying statements about the case and then threatened to send Flynn to jail, ignoring the Justice Department's probation recommendation. An appellate body this summer decided that enough was enough and ordered Sullivan to dismiss the charges.
However, the appeals court ruled that Sullivan should be given the opportunity to do the right thing and make a final decision before any review. He has refused to convict Flynn despite the Justice Department finding that Flynn should not have been charged. When Sullivan got the case back from the appeals court, he knew that if he didn't dismiss the charges, he would most likely be overturned. Again he refused to rule and lambasted the administration, saying that he "still had questions" about the case.
If Sullivan waits a few more months, the Justice Department could reverse its position on Flynn if Biden wins the election. This creates a troubling picture in a case already riddled with allegations of bias. When prosecutors try to manipulate a case through judge selection, it is known as judge buying. If Sullivan is delayed until after the election, it would appear to be some sort of presidential purchase, delaying a conviction for nearly three years in order to wait for a president better suited to incarcerating Flynn.
Voters will have answers to those questions, as Biden said, "when the election is over" and not sooner. Then it will be a new day. In the “Truman Show”, the master architect of the artificial world of Flims rejected the concept of truth and declared: “We accept the reality of the world with which we are confronted. It's that simple. ”With a few weeks to go to the polls, it is indeed as easy as that for voters.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online at JonathanTurley.