"However, when it comes to whether or not the president should agree to a voluntary interview, the usual rules apply."

That's Jon Sale in his op-ed for The Hill.  Here's the intro to the piece:

For months now, pundits have propagated the myth that special counsel Robert Mueller and his team must interview President Trump to complete their investigation. This misconception is based on the belief that Mueller requires and is entitled to an interview to determine the president’s knowledge and intent. Mueller is not so entitled, and the president should not do it.

Government prosecutors conduct white-collar investigations every day. Usually, prosecutors complete their investigations without the benefit of interviewing the person under investigation.

Like all white-collar investigations, Mueller’s investigation requires an analysis of the president’s knowledge and intent. The allegations involving obstruction and foreign meddling in our election are no exception.

Knowledge and intent determinations are necessary in most white-collar investigations. Typically, prosecutors determine whether they can prove criminal intent based on the facts uncovered in their investigation, including relevant witness testimony and documentary evidence such as emails.

The prevailing view, based on legal opinions from the Justice Department’s Office of Legal Counsel, is that Mueller cannot seek an indictment of the president from the grand jury and, thus, his recourse is to write a report. That report can address the president’s knowledge and intent based on the evidence, without the benefit of a voluntary interview of the president.

While it is “typical” for a prosecutor to conclude an investigation without interviewing the person under investigation, this investigation is anything but typical. However, when it comes to whether or not the president should agree to a voluntary interview, the usual rules apply. The president’s legal team is wise in recommending that he not agree to an interview; all it could do is help Mueller’s team advance an arguable case against the president.

Should judges ask questions of witnesses?

We're back on the Manafort trial.  Lead snitch Rick Gates is on the stand and is getting hammered for his lies.  Even the judge took part.  From the Washington Post:

Just before the jury left for the day, Rick Gates echoed other prosecution witnesses in saying Paul Manafort kept a close eye on his financial affairs.

“Mr. Manafort in my opinion kept fairly frequent updates,” Gates said, after a discussion of movement between their consulting firm’s offshore accounts. “Mr. Manafort was very good at knowing where the money was and where it was going.”

Judge Ellis, as he has repeatedly, interjected.

“He didn’t know about the money you were stealing,” Ellis said, “so he didn’t do it that closely.”

The comment by the judge goes to a question at the heart of the trial — how much fraud could possibly have gone on under Manafort’s nose without his knowledge.

Downing also challenged Gates on his acceptance of responsibility, pointing out that he has not repaid the money he stole from Manafort.

“I spent it over the years,” Gates said.

That's pretty devastating for the prosecution.  But I feel pretty strongly that judges should not be questioning witnesses.  It's just not their role.  And jurors tend to defer to judges.  Most times, judges do it to cover for prosecution mistakes and it hurts the defense, especially during a strong cross of a government witness.  No one really complains when this happens... the complaints only seem to crop up when the prosecution is getting hurt. Either way, though, judges should let the lawyers do the questioning. 

"Prosecutors will decide..."

That was the catch-phrase in John Oliver's take on why the criminal justice system is in shambles. He ticks through a bunch of the problems that result from letting prosecutors control the system: the trial tax, what discovery is produced, no accountability for misconduct, and so on.  One example:

“Prosecutors typically get to decide whether something is relevant to the defense, which seems inherently flawed,” said Oliver. “You can’t just count on an adversary to voluntarily expose all of their weaknesses. In Star Wars, the rebels had to steal the Death Star plans. The Empire didn’t just email it to them with the subject line FWD: GIANT STUPID WEAK SPOT (VERY DUMB, GO TO TOWN).”

It's below and definitely worth a watch.

In the Manafort trial, the judge is actually standing up to the prosecution team and trying to limit irrelevant evidence. But the prosecutors aren't used to someone else deciding. So they have resorted to disrespect and anger. From Politico's article "Manafort prosecution's frustration with judge leads to fiery clashes":

For days, U.S. District Court Judge T.S. Ellis has been cracking the whip at prosecutors in the Paul Manafort fraud trial, prodding them again and again to keep the case moving forward and to drop matters he considers irrelevant.

Prosecutors’ frustration with those exhortations spilled out publicly Monday in a series of prickly clashes in which Ellis snapped at one of special counsel Robert Mueller’s prosecutors, Greg Andres, and Andres sometimes lashed back at the judge — something lawyers rarely do.

The day’s first significant altercation came as Andres sought to question Manafort’s former deputy, Rick Gates, about his travels, using his passport as a visual aid.

“Let’s go to the heart of the matter,” Ellis said.

“Judge, we’ve been at the heart. …” Andres replied, before the judge cut him off.

“Just listen to me. … Don’t speak while I’m speaking,” the judge said, sharply. He added that he didn’t see how the testimony on travel “amounts to a hill of beans” with regard to the charges against Manafort, the former Trump campaign chairman.

***

Ellis said he wanted to give Andres an “opportunity to educate me” about the usefulness of the testimony about Ukraine’s political system and why wealthy individuals were paying millions of dollars to back Manafort’s work as a political consultant.

“I don’t see any earthly relationship” between testimony about “political contributions” and the alleged tax evasion on Manafort’s part, the judge said.

Andres took issue with calling the payments political contributions, and he appeared to fault Ellis for minimizing the significance of the payments in his comments in front of the jury

“These people are not making political donations,” the prosecutor said. Calling the donors “oligarchs” — a term Ellis banned the government from using in front of the jury last week — Andres explained that their livelihood was completely dependent on government-granted monopolies.

“That makes it even clearer to me” that it’s not relevant, the judge interjected. “It doesn’t matter whether they’re good or bad or oligarchs or crooks or mafia or whatever. … You don’t need to throw mud at these people.”


At that point, Ellis noted that Andres was looking at the lectern. “You’re looking down as if to say, ‘This is B.S.,’” the judge complained.

Andres seemed angered by the accusation and said the judge was leaping to conclusions. “We don’t do that to you,” the prosecutor said.

When the judge mentioned an earlier complaint he made about lawyers rolling their eyes, Andres interrupted again and the atmosphere grew tense. “I find it hard to believe I was both looking down and rolling my eyes,” he said.

Andres pressed on with his argument that the payments to Manafort were not political contributions, this time adding the charge that every time the government tried to elicit testimony about why the payments were made, “Your Honor stops us.”

“The record will reflect I rarely stopped you,” Ellis insisted.

“I will stand by the record,” Andres snapped.

“And you will lose,” the judge shot back.

Interesting state court issue concerning the Governor's power to appoint judges

Florida Circuit Judge Robert Foster is due to retire on January 7, 2019, due to mandatory retirement. That would mean that Gov. Scott's successor would appoint his replacement. So Judge Foster said he will retire on Dec. 31, 2018, to allow Scott to appoint his replacement. The First District agreed that this was permissible. But the Florida Supreme Court (4-3) has stayed the order pending further briefing. It's an interesting battle, covered more in depth by this article.

There's no good solution to how we select our judges. Appointments are by their nature political. And elections are not based on actual judicial qualifications since they are not permitted to campaign or debate. I'm not sure what the right answer is here.

11th Circuit panel not happy about the new “panel published order” rule created by another panel

So the Johnson litigation produced lots of angry opinions back and forth by various wings of the 11th Circuit. One wing got the upper hand by quickly publishing a bunch of orders within 30 days days (based on pro-se pleadings under 100 words, without government responses, and without oral argument). And in those orders, the right wing of the court said that they are binding on future panels. Judges Wilson, Martin, and Jill Pryor are rightfully not happy about it. And said so in two concurrences in this order.

From Judge Wilson’s concurrence:

These applications are often decided without counseled argument from the petitioner, and are always decided without an opposing brief from the government, except for death-penalty-related applications. We also rarely have access to the whole record. See generally Jordan, 485 F.3d at 1357–58 (describing the limitations we face when deciding these applications). When making these determinations, therefore, the panel typically races to issue an unappealable order based solely on the arguments of a pro se prisoner constrained to a little over one page per ground.
Conversely, when we decide a merits appeal, we have essentially unlimited time to decide the case, there are usually attorneys on both sides, we have extensive briefing, and we have the entire record in front of us (including an order from the court below). And the large majority of our published merits opinions come from our oral argument calendar, where attorneys for each party argue for at least fifteen minutes. Of course, after a merits opinion issues, aggrieved parties may petition for panel rehearing, for rehearing en banc, or for a writ of certiorari.
Despite this stark contrast in process, published panel orders and published opinions now enjoy the same precedential heft, equally binding future panels of this court unless and until overruled by the court sitting en banc. In fact, published panel orders perhaps have greater weight, because they may not be appealed to the Supreme Court and they may not be the subject of a petition for rehearing en banc. We should not elevate these hurriedly-written and uncontested orders in this manner.