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Inquisitors' Founding Regulations of Absolute Power
Trump-Appointed Judge Rules Against Indicted Russian Firm
Concord Management and Consulting's attempts to discredit the investigation were shot down in a 41-page ruling from U.S. District Judge Dabney Friedrich, who was appointed by Trump to the District of Columbia bench last year.
[MEMORANDUM OPINION: the "could"] Concord Management and Consulting LLC moves to dismiss the indictment on the ground that Special Counsel Robert Mueller was appointed unlawfully by Acting Attorney General Rod Rosenstein. Dkt. 36. The Court will deny Concord's motion. The Special Counsel's appointment complies with the Constitution's Appointments Clause because (1) the Special Counsel is an "inferior Officer"; and (2) Congress "by Law vest[ed]" the Acting Attorney General with the power to make the appointment. U.S. Const. art. II, § 2, cl. 2.
Id. The regulations govern the Special Counsel's jurisdiction, powers, and duties. They "seek to strike a balance between independence and accountability in certain sensitive investigations." Id. According to the regulations' preamble, the Special Counsel is "free to structure the investigation as he or she wishes and to exercise independent prosecutorial discretion to decide whether charges should be brought, within the context of the established procedures of the Department." Id. "Nevertheless, it is intended that ultimate responsibility for the matter and how it is handled continue[s] to rest with the Attorney General (or the Acting Attorney General if the Attorney General is personally recused in the matter)." Id. B. Appointment of Special Counsel Rob
DICTION CORNER: limits of Inquistors' Power, or Authority, as an"inferior officer" in the executive branch
First, "should" is generally "precatory, not mandatory."
The imperative mood is tried, strictly, not colloquially speaking, Mr Comey might argue. I don't know, haven't read his book.
Ass'n of Flight Attendants v. Huerta, 785 F.3d 710, 718 (D.C. Cir. 2015); see also Jolly v. Listerman, 672 F.2d 935, 945 (D.C. Cir. 1982) ("The use of the word 'should' . . . detracts significantly from any claim that this guideline is more than merely precatory"); Military Toxics Project v. EPA, 146 F.3d 948, 958 (D.C. Cir. 1998); Judd v. Billington, 863 F.2d 103, 106 (D.C. Cir. 1988). Although the use of "should" instead of "shall" is not "automatically determinative," Doe v. Hampton, 566 F.2d 265, 281 (D.C. Cir. 1977), it is particularly striking here because "shall" is used twice in the very same sub-provision, seven times in the same provision, and throughout the Special Counsel regulations, see 28 C.F.R. §§ 600.3, 600.4, 600.6, 600.7; see also Russello v. United States, 464 U.S. 16, 23 (1983) ("We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship."). And the same sub-provision requires that, if the Acting Attorney General concludes that a proposed action should not be pursued," certain actions must follow--in particular, the Acting Attorney General "shall notify Congress." 28 C.F.R. § 600.7(b). Pointedly missing is any requirement that the Special Counsel "shall" comply with the conclusion. See Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017) ("[W]e presume differences in language . . . convey differences in meaning.").

Further context does not turn "should" into a mandatory term. The Special Counsel argues that "should" is sufficiently ambiguous that its meaning ought to be ascertained from the "the context of the regulation" and the Attorney General's "intent," such as is embodied in the regulations' background section....

I for one am reminded of arguments offered by Republican caucus conselors differentiating "state" and "State" in the matter of PPACA "fines" and "taxes" before the SCOTUS.
Regardless, even crediting the Special Counsel's argument that "should" can be read as a mandatory "shall," some Special Counsel decisions remain insulated from review or countermand under § 600.7(b)....

Diversity is the key to economic and political evolution.
by Cat on Mon Aug 13th, 2018 at 07:58:52 PM EST
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