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Biden, Booker launch new attacks ahead of CNN's Democratic debate
04:03 - Source: CNN

Editor’s Note: In this weekly column “Cross-exam,” Elie Honig, a CNN legal analyst and former federal and state prosecutor, gives his take on the latest legal news and answers questions from readers. Post your questions below. The views expressed in this commentary are his own. View more opinion articles on CNN. Watch Honig answer reader questions on “CNN Newsroom” at 5:40 p.m. ET Sundays.

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Few issues have the power to both unite and divide like criminal justice. Progressive reform efforts – including the 2018 First Step Act – have created unlikely (if temporary) political alliances across the ideological spectrum from President Donald Trump and his senior adviser Jared Kushner to House Speaker Nancy Pelosi and Kim Kardashian West. Yet criminal justice has become one of the most hotly contested issues among 2020 Democratic presidential candidates, driving sharp wedges between leading contenders. Look for criminal justice to emerge as a defining issue at this week’s debates, throughout the Democratic primaries and, ultimately, in the general election.

Elie Honig

Much of the fire has been aimed at current Democratic frontrunner and former Vice President Joe Biden, who – as chair of the Senate Judiciary Committee – was a driving force behind the 1994 Violent Crime Control and Law Enforcement Act. The bill, which Democrats advanced to combat the “soft on crime” label, created a federal “three strikes” law requiring mandatory life imprisonment for certain offenders, provided billions of dollars in federal funding to hire police officers and build prisons, financially incentivized states to require inmates to serve higher proportions of their sentences, and expanded the federal death penalty.

While the 1994 bill also contained certain progressive features – including an assault rifle ban and funding to promote community policing, require background checks on guns and create drug courts – it now has emerged as a paragon of destructive tough-on-crime policies that contributed to mass incarceration and exacted a disproportionate toll on African American and other minority communities. This view of the federal 1994 crime bill as the dominant cause of mass incarceration is debatable. In fact, the vast majority of incarceration occurs at the state level, and incarceration rates were rising generally – and among minorities, well before the bill’s passage. But, at a minimum, the 1994 bill maintained and expanded certain pre-existing policies that contributed to mass incarceration.

Democratic candidates are on the attack. New Jersey Sen. Cory Booker has argued, “That crime bill was shameful, what it did to black and brown communities like mine (and) low-income communities from Appalachia to rural Iowa.” Booker later bluntly called Biden an “architect of mass incarceration.” California Sen. Kamala Harris similarly has claimed that the 1994 bill “did contribute to mass incarceration in our country.” Biden’s own fiery and racially-tinged rhetoric – including a 1993 speech in which he warned of “predators on the streets” who were “beyond the pale” – could create devastating sound bites that his opponents likely will weaponize against him.

Biden has defended his support for the crime bill, arguing that “it did not generate mass incarceration.” And he now has swung hard toward progressive criminal justice policies, recently rolling out a plan to eliminate certain mandatory minimum sentences, end cash bail and end the federal death penalty, among other features. But Biden’s prior actions and words may be more than he can fix with a policy proposal now.

Even the staunchest supporters of the 1994 crime bill have since retreated. Vermont Sen. Bernie Sanders (who was in the House of Representatives at the time) recently conceded, “I’m not happy I voted for a terrible bill.” President Bill Clinton, who signed the bill into law, in 2015 completed a full backtrack, declaring that he “signed a bill that made the problem worse and I want to admit it.”

President Donald Trump – likely sensing an opportunity to sow discord among his Democratic rivals and to take a shot at potential general election foes Biden and Sanders – has eagerly jumped in on the action, tweeting that “Anyone associated with the 1994 Crime Bill will not have a chance of being elected” and touting his own support of the First Step Act.

While Harris and Booker throw haymakers over the 1994 bill, they must also guard their own flanks on criminal justice. Harris has come under fire for her policies and practices as San Francisco district attorney and then California attorney general, including fighting against a ban on the death penalty, opposing legalization of marijuana, opposing statewide standards on use of police body cameras and fighting to uphold controversial convictions based on tainted or questionable evidence. Harris has defended her record, arguing that she was a “progressive prosecutor,” and rolling out a criminal justice reform plan for her presidential campaign.

And Biden recently attacked Booker for his record as mayor of Newark, New Jersey, where systematic civil rights violations by the police department caused the Department of Justice to intervene. Biden claims Booker objected to federal intervention, but Booker has defended his record.

There are few issues before the candidates that are as dynamic, multidimensional and potentially explosive as criminal justice reform. In a field of contenders seeking differentiation, expect to see the leading contenders go hard after one another at this week’s debates and beyond.

Now, your questions:

David, Texas: Do you think Pelosi is right – should there be more evidence prior to starting an impeachment inquiry?

Pelosi is setting the bar higher than it needs to be, apparently as a hybrid political-legal play. Pelosi claimed this week that Mueller’s testimony established “crimes that were committed against our Constitution,” while Nadler declared that Trump had committed “high crimes and misdemeanors” – the precise standard for impeachment set forth in Article 2 of the Constitution. Yet, curiously, Pelosi and Nadler also claim that they need more evidence before proceeding on impeachment, though Nadler also has (paradoxically) asserted that he personally believes Trump “richly deserves impeachment.”

But if there is already evidence that the President has committed crimes, and if Trump already “richly deserves impeachment,” then why does the House need more before moving to impeach? Legally, there is no requirement that the House obtain anything beyond the Mueller report itself. In 1998, the House impeached then-President Bill Clinton based on the written report of Independent Counsel Kenneth Starr and the underlying evidence, without anything new or supplemental.

The move here is part political and part legal. Politically, the “we need more evidence” refrain allows Pelosi to continue walking a fine line to satisfy the different factions within the House Democratic Caucus. And, legally, House Democrats have filed suit seeking Mueller’s grand jury information and have promised court action to enforce a subpoena on former White House counsel Don McGahn. A “we need more information” position will aid House Democrats in those legal battles far more than a “we already have enough” position would.

Bart, Texas: If Trump refuses by executive order or other means to obey a final federal court ruling, how can the courts or Congress respond?

Legally and practically, if Trump or his administration defied a final order from a federal court, there is only one solution: impeachment.

Trump had threatened to defy the Supreme Court’s recent ruling prohibiting inclusion of a citizenship question on the census, but backed off at the last moment. Given Trump’s flirtation with defiance of the Court, and his tendency to ignore established norms, there remains concern that the administration might someday disobey a court order, including on Congress’ recent lawsuit to obtain grand jury information underlying the Mueller report.

Our system operates on the fundamental premise that court orders are final and can be enforced by the Executive Branch, if necessary. Famously, when states resisted desegregation following the landmark 1954 ruling in Brown v. Board of Education, President Dwight Eisenhower sent the National Guard to enforce the Supreme Court’s order at a public high school in Little Rock, Arkansas.

The trick here, of course, is that it would be the President and the Executive Branch itself defying a court order. There simply would be no remedy in our constitutional system other than impeachment. Maryland Rep. Elijah Cummings and California Rep. Adam Schiff both have anticipated the possibility of such defiance by Trump, telling CNN – though not quite committing with certainty – that they could support impeachment should Trump simply refuse to abide by a final court ruling.

Mary Ellen, New York: Has Attorney General William Barr recused himself from the Jeffrey Epstein case, and does he have the ability to intervene in some way?

Since Barr’s former law firm once represented Epstein, Barr has recused himself from the internal Justice Department investigation looking back at then-US Attorney Alex Acosta’s handling of plea negotiations that resulted in an absurdly lenient nonprosecution agreement for Epstein in 2008. But Barr has inexplicably decided not to recuse himself from the ongoing prosecution of Epstein in the Southern District of New York. This distinction simply makes no sense. If Barr has a conflict of interest regarding Epstein’s 2008 plea deal, the same conflict should apply to the current prosecution.

Because he has not recused himself, Barr can oversee and intervene in the ongoing case. The Southern District is part of the Justice Department and, as attorney general, Barr can have whatever say he wants in the its prosecution of Epstein. Don’t expect Barr to manage the case on a day-to-day basis, though he might demand oversight on major decisions and – importantly, given some of the bold-face names associated with Epstein – related cases that could come out of it. While the Southern District is famously independent (some jokingly call it the “Sovereign District of New York”), there is little it can do to resist oversight by the attorney general.

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    Barr needs to tread carefully here. While there are no specific indications that Barr intends to, if he intervenes to go easy on Epstein or to suppress other cases that should be brought, expect the Southern District to speak out (even if off the record to the media) and Congress to demand answers.

    Three questions to watch:

    Will House Democrats file a lawsuit to compel McGahn’s testimony (as Nadler has promised) and, if so, will Nadler state unequivocally in court papers that the Judiciary Committee is conducting an impeachment inquiry?

    Will we see lawsuits to stop the Justice Department’s plan to reinstate the death penalty and execute five capital offenders?

    Will the Second Circuit Court of Appeals let Epstein out on bail?