Internet Scofflaw

The Hill reports:

Two Department of Justice prosecutors have been suspended without pay and a Senate Democrat has scheduled a committee hearing following the release Thursday of a DOJ report that detailed the government’s misconduct in its botched case against the late Sen. Ted Stevens (R-Alaska). . . The report found the attorneys “acted in reckless disregard” for their legal obligations by not disclosing exculpatory evidence to Stevens’s defense lawyers.

Remember, their misconduct changed the outcome of the election, giving Democrats the deciding vote for their stimulus boondoggles and for health care nationalization.

(Previous post.) (Via Instapundit.)

The execrable “People’s Rights Amendment” proposed by so-called liberals such as Nancy Pelosi would not literally repeal the First Amendment rights to speech, religion, and the press. It would only repeal those rights for those people who organize their activities as a corporation — which is to say, nearly every church, newspaper, and activist group.

Eugene Volokh takes a look at what would happen to our press if the amendment were to be enacted:

First, any media organization that wants to be free would thus have to give up the benefits of the corporate form, and will have to organized as a partnership. This will make it much harder for those media organizations to raise operating capital, dealing with changes in ownership as partners die or leave, and the like.

Second, those media organizations that choose to organize as a corporation would have huge practical competitive benefits over organizations that choose to organize as partnerships. As a result, the normal competitive process will . . . give corporate-owned large media organizations the overwhelming majority of the market share.

In the end there would be a tiny free press, and nearly the entire media would be corporate. Thus, the government would be free to censor essentially the entire media.

And no one should doubt that it would, given the opportunity. Citizens United, the case the spawned this horrible idea, was specifically a case in which the government wanted to censor a movie for its political content. In arguing the case, the Obama administration specifically claimed also to have the power to ban other media, such as books and pamphlets.

More generally, what’s going on here is an effort to take the next big step toward totalitarianism. Our constitution limits the power of the federal government in two ways: First, there are positive restraints: the doctrine of enumerated powers says the government has only those powers that are explicitly granted to it. Second, there are negative restraints: some powers that are explicitly denied to it.

The framers of the Constitution originally thought that negative restraints were unnecessary given its system of positive restraints. For example, the Constitution didn’t grant the government the power to censor the press, so it couldn’t. However, they ultimately decided to include a set of negative restraints in the Bill of Rights as well.

It’s good that they did, because the positive restraints are now largely obsolete. Since Wickard v. Filburn, the power to regulate interstate commerce has been nearly all-inclusive. If the Supreme Court upholds Obamacare, there will remain no meaningful positive limitation on the government’s power. At the same time, other safeguards such as the separation of powers are breaking down. Even free elections (a flimsy defense for minority rights in any case) are threatened by the Democrats’ insistence on making fraud as easy as possible.

The negative restraints — which the framers considered nearly redundant — are virtually all we have left. So it’s not too surprising to see the totalitarians like Nancy Pelosi beginning to work on undermining them.

Another Durham County district attorney, Durham’s first elected DA since the infamous Mike Nifong, has been removed from office for ethical misconduct.

Once could be just happenstance. I mean, what county doesn’t elect a flagrantly unethical race-baiting DA on occasion? But two in a row? Durham has a problem.

NBC gave President Obama five minutes of free air time to deliver a campaign speech on Jimmy Fallon’s show. Ben Shapiro says that appearance violated the law, and it looks to me like he has it right. There’s no way this is a “bona fide news interview”.

The execrable HHS Secretary Kathleen Sebelius admits that she did not seek any legal advice before issuing her mandate requiring everyone, Catholics included, to pay for contraceptives and abortifacients as part of their health care.

If she had, her lawyer might have told her that the mandate violates the Religious Freedom Restoration Act. Who wants to hear that sort of thing?

(Via the Corner.)

A group of Democrats led by Rep. Jim McGovern (D-MA) and including Nancy Pelosi want to amend the Bill of Rights as a reaction against the Citizens United decision.

Their proposed “People’s Rights Amendment” would strip constitutional protections from any group that is organized as a corporation. As Eugene Volokh explains, that includes most churches, newspapers, and nonprofits, so the proposed amendment would eviscerate the freedoms of religion, speech, and the press.

These liberals’ basic problem here is a deep misunderstanding of the logic of Citizens United: Contrary to common misunderstanding, the landmark decision did not rule that corporations constitute persons. On the contrary, it ruled that corporations are made up of people. They are groups of people who have chosen to organize their activities using a certain provision of law.

Corporations have no speech rights of their own, but they people who make up the corporation have free speech rights, and those rights are not attenuated merely because they have chosen to organize their activities in a particular way. Thus, any effort to eliminate the rights of corporations really only eliminates the rights of individuals.

The world that these Democrats claim to want is a world in which individuals have rights, but they cannot band together to exercise those rights. Each man exercising his rights must stand alone.

Supreme Court Justice Elena Kagan says her job now is pretty much the same as her old job as Solicitor General.

“Cyberbullying” rules are being used to protect authorities from criticism.

UPDATE: Fixed the missing link.

Even at this late date, the Obama administration is trying to cover-up the Gunwalker scandal. The White House won’t let Congressional investigators take testimony from Kevin O’Reilly, formerly the White House National Security Director for North America. O’Reilly was informed of Fast and Furious, and his testimony could shed light on how high that information went.

O’Reilly wants to testify, but the White House won’t let him:

“[O’Reilly’s] personal attorney indicated that he’s more than willing to talk to the committee, on the record, under oath”” [Rep. Jason] Chaffetz told Kelly during her Friday afternoon broadcast. “It is only the White House and the White House Counsel that is saying they will not make him available.”

Innocent people rarely behave this way.

(Previous post.)

Even Democrats want the Supreme Court to throw out the individual mandate.

President Obama says that it would be “unprecedented” for the Supreme Court to strike down Obamacare:

I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected congress.

Wow, every single thing in this sentence is false. Clearly, Obama is not confident. The law was not passed by a strong majority (four votes in the House and zero in the Senate). The Congress was not democratically elected (the winning margin in the Senate came from Paul Kirk, who was appointed to the body after Edward Kennedy died — an appointment that required an 11th hour change in the law).

But most absurd is the suggestion that it would be unprecedented for the Supreme Court to strike down a law, even if all those things were true. Judicial review has been part of our system since Marbury v. Madison in 1803 struck down a provision of the Judiciary Act of 1789. The Judiciary Act was adopted in the very first session of the United States Congress. All told, the Supreme Court has struck down 165 laws as unconstitutional.

How could a man who taught constitutional law at the University of Chicago say such a thing? Did he never teach Marbury v. Madison? As it turns out, no, he didn’t. Obama taught Constitutional Law III, which covers exclusively the 14th Amendment. So Obama never taught separation of powers or checks and balances, which makes a lot of sense when you consider his actions.

This was too much for the American Bar Association. It was too much for the Democratic apologists at Politifact. And it was too much for the 5th Circuit Court of Appeals:

A three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain by Thursday whether the administration believes judges have the power to strike down a federal law.

One justice in particular chided the administration for what he said was being perceived as a “challenge” to judicial authority — referring directly to Obama’s latest comments about the Supreme Court’s review of the health care case.

The Justice Department, of course, had to acknowledge the principle of judicial review, although it laughably asserted that Obama’s remarks were consistent with it.

Obama later tried to walk back his remarks:

He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner, right? So we’re going back to the ’30s, pre-New Deal.”

Again, Obama doesn’t sound much like a constitutional scholar here, or he would have known that Lochner was in 1905, not during the 1930s. But that’s a nitpick. More to the point, it’s complete nonsense. The Supreme Court has struck down provisions from plenty of economic laws since 1905; including Sarbanes-Oxley just two years ago.

More generally, the problem here is that Obama doesn’t understand (or willfully misrepresents) what judicial activism means. In his original remarks, before the walkback, Obama went on to say:

I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law.

No. Judicial activism is when the courts render decisions based on their political preferences, rather than on meaning of the law. It’s not judicial activism whenever the Supreme Court strikes down a law. On the contrary, if the law is unconstitutional, it would be judicial activism to leave it standing.

Unfortunately, progressives tend not to believe (or tend not to care) that the law has any meaning independent of current politics. For example, Obama cautioned the court:

The justices should understand that in the absence of an individual mandate you cannot have a mechanism to ensure that people with pre-existing conditions can actually get health care.

Again, that’s complete nonsense, but again, that’s beside the point. The point is, this is a policy argument, not a legal argument. Only a judicial activist would even find it relevant.

POSTSCRIPT: Fortunately, it doesn’t seem to be working. Even Obama’s own allies are saying publicly that his attack on the Supreme Court is ill-considered. And the Supreme Court’s approval rating has risen dramatically since Obama began his attack.

This Patterico post on severability in the context of Obamacare expresses what I’ve thought for a long time. If the courts strike down a law as unconstitutional, then in the absence of any severability provision that says exactly what should remain, the court should strike down the bill in its entirety. Anything else is an arrogation of legislative authority.

Unfortunately, that not what the courts do. Instead, they try to find some constitutional subset of the bill that the Congress might have passed instead. But this is precisely what the courts are not competent to decide: to resolve the political question of what Congress is willing to do.

Firstly, the Supreme Court does not have the necessary insight to answer the question. No one does. Even members of Congress who have legislated for decades cannot predict what Congress will do. But, secondly, even if they did have the insight, legislating is a dynamic process, not a static process. Put in computer science terms, the legislative branch maintains a state, and that state is altered by the legislative process. Allegiances shift, favors change hands, special elections are won and lost. Even if the Court could simulate that process, it certainly could not enact its result.

Instead, the Supreme Court sets itself the task of acting as a secondary legislature, tasked with drawing up, using only the delete key, a new bill that holds together under the Court’s various rules. They have no business doing so.

. . . of course, the part of the government that the Times wants to limit is the Supreme Court.

(Via Ricochet.)

I believe the fashionable term for this is epistemic closure:

That the law is constitutional is best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it.

This is not what we call a logical argument.

It’s clear from the last three days that the defenders of Obamacare never actually bothered to devote any thought to legal arguments in defense of Obamacare. They really did believe it was self-evident. I don’t know whether to be relieved or appalled that they actually believed their own nonsense.

More here.

In December 2009, the idea that the Constitution limits the power of the federal government was scoffworthy to Nancy Pelosi:

CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?

Pelosi: “Are you serious? Are you serious?”

CNSNews.com: “Yes, yes I am.”

Pelosi then shook her head before taking a question from another reporter. Her press spokesman, Nadeam Elshami, then told CNSNews.com that asking the speaker of the House where the Constitution authorized Congress to mandated that individual Americans buy health insurance as not a “serious question.”

“You can put this on the record,” said Elshami. “That is not a serious question. That is not a serious question.”

After oral arguments before the Supreme Court, everyone understands now; it was and is a serious question. It’s just that the Democrats are not a serious party.

It turns out that hating the government isn’t a crime after all! Who knew? (Evidently not the Obama administration!) More on the case here.

(Via Instapundit.)

During the Bush administration, the Justice Department prosecuted a Republican operative for making illegal robocalls. (Robocalls are required to state who they are from and provide a callback number.) Will the Obama Justice Department prosecute the Democratic operatives responsible for making illegal robocalls attacking Rush Limbaugh?

Answer: Unlikely. Eric Holder’s Justice Department has made it clear that it will never enforce the law against the interests of the Democratic Party. If they will drop the voter intimidation case against the Black Panthers after the case was already won, they certainly won’t bring charges for this.

UPDATE: Uh oh: The White House affirms that it still has confidence in Verrilli.

The Supreme Court seems to believe that the individual mandate is not a tax. So unless they adopt the notion that it is simultaneously a tax and not a tax, that’s one defense of Obamacare dispensed with.

The agents who ran the Gunwalker debacle were even stupider that we previously were aware:

The prime suspect in the botched gun trafficking investigation known as “Fast and Furious” — Manuel Acosta — was taken into custody and might have been stopped from trafficking weapons to Mexico’s killer drug cartel early on. But the Bureau of Alcohol, Tobacco and Firearms (ATF) let him go, according to new documents obtained by CBS News.

He was supposed to cooperate with the ATF, but — as anyone with an ounce of sense would predict — he disappeared as soon as he was released:

Instead of pursuing charges, Agent MacAllister asked Acosta if he’d be willing to cooperate with federal agents. He agreed and was released. Apparently, the promised cooperation never materialized. The report notes that 17 days after Acosta was let loose, he still had “not initiated any contact with Special Agent MacAllister.”

And here’s the best part:

Before releasing Acosta, MacAllister wrote her contact information on a $10 bill at Acosta’s request, gave it to him, then warned him “not to participate in any illegal activity unless under her direction.”

That’s just awesome: (1) they warn a criminal — as they release him — to stop committing crimes, (2) but they say they might need to direct him to commit some more crimes.

(Previous post.) (Via Hot Air.)

Jon Corzine, former Democratic senator and then governor of New Jersey, personally directed the theft of $200 million to cover MF Global’s debts:

Jon S. Corzine, MF Global Holding Ltd. (MFGLQ)’s chief executive officer, gave “direct instructions” to transfer $200 million from a customer fund account to meet an overdraft in a brokerage account with JPMorgan Chase & Co. (JPM), according to a memo written by congressional investigators.

Edith O’Brien, a treasurer for the firm, said in an e-mail quoted in the memo that the transfer was “Per JC’s direct instructions,” according to a copy of the memo obtained by Bloomberg News. The e-mail, dated Oct. 28, was sent three days before the company collapsed, the memo says.

That explains $200 million of the missing $1.2 billion. Meanwhile, when last we heard, Corzine is still fundraising for Barack Obama.

(Via Jammie Wearing Fools.)

The Supreme Court has issued an important decision in Sackett v. EPA. Justice Alito explains the issue:

The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency(EPA) employees.

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.

In short: When the Sacketts claimed that their property was not a wetland (and they have a strong argument on the merits), the EPA refused to give them a hearing, and also refused to sue them, and tried to deny them access to the courts on the pretense that their decision wasn’t final yet.

Just to be clear, this administration — which thinks that every terrorist picked up on the battlefield in Afghanistan deserves his day in court — thinks that property owners should have no access to the courts when the EPA prohibits them from using their property. (And yes: the Solicitor General’s office submitted the government brief, so that was literally the Obama administration’s position.)

The Supreme Court didn’t buy it, and ruled 9-0 against the administration.

POSTSCRIPT: This is the second time this year already in which the administration has taken an outrageous position and received a 9-0 rebuke from the Court. In January the administration failed to convince the Court that that the government should be able to dictate ministers to churches.

A federal court in Washington state has ruled that Washington’s law that requires all pharmacists to dispense the drug Plan B (an abortifacient) violates the First Amendment.

Existing case law says that a law that burdens religious freedom can still be constitutional, but only if it is generally applicable and neutral to religion (or if it satisfies strict scrutiny, which almost nothing does). It’s not so in this case:

The court determined that the regulations are not neutral for purposes of deference under Employment Division v. Smith. Rather, they “are riddled with exemptions for secular conduct, but contain no such exemptions for identical religiously-motivated conduct” and thus amount to an “impermissible religious gerrymander.”

Likewise, the regulations are not “generally applicable” but rather “have been selectively enforced, in two ways”: First, the rule that pharmacies timely deliver all lawful medications has been enforced only against the plaintiff pharmacy and only for failure to deliver plan B. Second, the rules haven’t been enforced against the state’s numerous Catholic-affiliated pharmacies, which also refuse to stock or dispense Plan B.

Jane Fonda and Gloria Steinem want the FCC to force Rush Limbaugh off the air. Gloria Allred goes further, she wants him prosecuted!

POSTSCRIPT: In case you’re curious. Yes, both Fonda and Steinem have appeared on Bill Maher.

Something has gone terribly wrong with California’s legal system if its courts have occasion to hold a trial to determine whether the major pro tem of Compton is “really” Latino or not. That’s a proceeding that would make sense in apartheid South Africa, not in America.

(Via Instapundit.)

A Daily Caller investigation has found that (unsurprisingly, given what’s happened) the Obama administration and LightSquared are as thick as thieves. A few highlights:

• “Before Barack Obama became president, he was personally an investor in SkyTerra [which became LightSquared].”
• “[White House personnel director Don] Gips’ personal financial disclosure forms show he had between $250,000 and $500,000 of his personal finances invested in SkyTerra via stock options.”
• “It’s unclear what specifically Gips and [incoming FCC director Julius] Genachowski were discussing at that White House meeting; but shortly after that meeting SkyTerra named two members of Obama’s White House transition team to senior leadership positions at the company.”
• “Not too long after those Obama-tied hires, lawyers for Falcone’s Harbinger fired off an email that may suggest FCC coordination to approve the sale of SkyTerra to Harbinger outside of what is procedurally acceptable. . . Harbinger’s lawyers seemed to know a month ahead of time that the FCC would approve their proposal.”

The Daily Caller also found that the FCC drove LightSquared’s competition GlobalStar out of business with adverse regulatory decisions. Worse, those adverse decisions came in circumstances nearly identical to ones in which LightSquared received favorable decisions.

POSTSCRIPT: Testimony to the House Subcommittee on Aviation explains why LightSquared’s network would be so damaging to the GPS system. Of particular interest is page 4, which explains why GPS receivers can’t simply filter out interference. (Via Instapundit.)

(Previous post.)

The Chicago Tribune reports:

A Cook County judge today ruled the state’s controversial eavesdropping law unconstitutional. The law makes it a felony offense to make audio recordings of police officers without their consent even when they’re performing their public duties.

Judge Stanley Sacks, who is assigned to the Criminal Courts Building, found the eavesdropping law unconstitutional because it potentially criminalizes “wholly innocent conduct.”

I don’t see any good-faith justification for the law in the first place.

(Via Instapundit.)

Three stories from the past week on the Democrats’ use of the tax machine to attack their political opponents:

• Politico reports that Democrats are threatening companies that if they contribute to Republican campaigns they will be punished in the tax code. (Via Hot Air.)
• The ACLJ is reporting that the IRS has ordered dozens of Tea Party organizations to produce extensive information on their membership, which has been illegal since 1958.
• A federal court has refused to dismiss Z Street’s charge that the IRS “tied its application for tax-exempt status to whether the group’s positions on Israel are ‘contradictory to those of the Administration.’”

Democrats have abandoned our country’s long-standing dedication to the rule of law, and the tax machine is a major battlefront in their effort to undermine it.

Fox News reports:

A Louisiana church was ordered to stop giving away free water along Mardi Gras parade routes because they did not have the proper permits. . .

[Pastor Matt] Tipton said volunteers from his church were handing out free coffee and free bottles of water at two locations along a Mardi Gras parade route when they were stopped by Jefferson Parish officials. The church volunteers were cited for failing to secure an occupational license and for failure to register for a sales tax. . .

The [Jefferson Parish] sheriff’s department said there was “no validity to their complaint whatever their complaint may be.”

(Emphasis mine.)

When you dismiss a complaint without even knowing what it is, it’s possible you aren’t really engaging with the issue.

Since LightSquared is probably not going to be allowed to crash passenger planes and break the GPS system, it is developing a new business plan based on lawsuits (subscription required). LightSquared would demand either compensation for regulators’ failure to approve their system, or a new piece of spectrum to replace the one they own.

All of which takes some chutzpah, since their entire business plan was based on undercutting their competition by using a cheap piece of spectrum (that wasn’t intended for communication systems) and relying on political connections to get their misuse of the spectrum approved.

(Previous post.)

David Rivkin and Ed Whelan make a convincing case that President Obama’s contraception mandate violates the Religious Freedom Restoration Act:

The 1993 law restored the same protections of religious freedom that had been understood to exist [before Employment Division v. Smith]. The Religious Freedom Restoration Act states that the federal government may “substantially burden” a person’s “exercise of religion” only if it demonstrates that application of the burden to the person “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest.

The law also provides that any later statutory override of its protections must be explicit. But there is nothing in the ObamaCare legislation that explicitly or even implicitly overrides the Religious Freedom Restoration Act. The birth-control mandate proposed by Health and Human Services is thus illegal.

(Via Hot Air.)

By the way, the RFRA passed the House unanimously, passed the Senate 97-3, and was signed by Bill Clinton.

This exchange undercuts the Obama administration’s argument that the Obamacare mandate is a tax, not a penalty. Nicely done, Rep. Garrett (R-NJ).

I’m late in reporting this, but a Federal court has upheld the ATF’s new policy requiring gun stores in southwestern states to report sales of more than one semi-automatic rifles.

This is unfortunate on multiple levels. First, it’s a bad policy. Second, even setting aside the Second Amendment, it’s troubling on separation-of-powers grounds that the executive branch can invent new burdens on gun ownership without the consent of Congress. Finally, it’s very troubling that the ATF operated a massive criminal enterprise at least in part to support its case for this policy and is being rewarded for its malfeasance.

(Previous post.)

A Justice Department lawyer takes the Fifth rather than testify in Congress’s Gunwalker inquiry.

(Previous post.)

An audit of the Department of Health and Human Services found $10 billion in discrepancies. But let’s be fair; HHS’s mandate is correcting Catholic theology, not accounting. . .

Unchastened by its 9-0 rebuke by the Supreme Court in its effort to gain the power to dictate to churches who their ministers will be, the Obama administration has turned its attention on Army chaplains. The administration prohibited Catholic chaplains in the Army from reading a pastoral letter from the Catholic Church to their congregations. (The letter opposed the Obama administration’s order that Catholic hospitals dispense contraceptives.) The administration also edited the letter before allowing it to be distributed in printed form.

Let’s please not have any more nonsense about this administration’s respect for civil liberties.

In an interview, Justice Ginsberg explained that she doesn’t like the Constitution:

“I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

That’s certainly consistent with her rulings. She’s done her best to make the Constitution into something else.

(Via the Corner.)

The news for religious freedom out of the Supreme Court isn’t all good, though. The Supreme Court declined to hear an appeal filed by a Bronx church that meets in a public school against a decision by the Board of Education to evict it. (The Board said that it was protecting the minds of “impressionable youth”!)

The church seemed to be on good legal grounds, since the courts have found that if a public facilities decides to rent out its space, it cannot discriminate as to who may do so. The Alliance Defense Fund found the Court’s decision not to take the case “befuddling“.

Earlier this month religious people of every stripe scored a major victory against the Obama administration when the Supreme Court handed down its decision in Hosanna-Tabor Evangelical Lutheran Church v. EEOC. It’s quite astonishing what the administration was trying to pull, even from that bunch: they asserted that the government has the power to dictate to a church who its ministers will be.

The case involved a woman, Cheryl Perich, who was hired as a “called teacher” at the Hosanna-Tabor Evangelical Lutheran Church. The position carried the official title of “Minister of Religion, Commissioned.” Perich became ill and was unable to begin work on schedule. Part way through the year, Perich reported for work, but the church disputed whether she was really ready to return to work. At this point, according to the church, Perich behaved badly and was dismissed.

Perich filed a claim with the EEOC, which agreed with her and filed suit. The lower court ruled in favor of the church, finding that the ministerial exception prevented the case from going forward. The exception, which is grounded in the First Amendment, says that the government cannot regulate a church’s choice of ministers. However, the court of appeals vacated the decision, finding that the position of “called teacher” is not really a minister.

The appeals court’s position that some church ministers weren’t really ministers was troubling, but then the Obama administration dramatically raised the stakes. The Justice Department filed a brief arguing that there should be no ministerial exception at all! (This position was even more radical than the one taken in the atheists’ brief.)

Instead, the DOJ argued that churches must rely on the same freedom of association that protects all Americans. Freedom of association has been shown to be a porous “freedom” offering very little protection, which is precisely what the administration intended.

The Supreme Court rejected the administration’s radical contention 9-0, observing:

Their position, however, is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. The Court cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

The court also found that Perich was a minister covered by the ministerial exception.

A more brazen attempt to undermine the First Amendment can hardly be imagined. Let’s please not have any more nonsense about this president’s respect for civil liberties. He is quite the opposite.

(Via Bench Memos.)

UPDATE: It should be obvious that giving the government any foot in the door in regard to churches’ choice of ministers is inimical to religious freedom. In case it isn’t, this article explains how even anti-discrimination law could be leveraged into a substantial burden on religious freedom.

A reminder of why Dodd-Frank is so bad, and why it has nothing whatsoever to do with consumer protection:

The CFPB is a constitutional affront, the crowning achievement of this White House’s mantra of never letting a crisis go to waste.

The agency has the power to regulate any practices it deems “unfair” — primarily the practices of institutions and businesses that had nothing whatsoever to do with the financial crisis.

Indeed, it has blank-check power to write the rules it wants to enforce. Worse, it cannot be reined in by Congress, because Dodd-Frank gave it a self-funding mechanism. It can simply take up to 12 percent of the Federal Reserve’s operating expenses to do whatever it wants. The power of Congress is ultimately the power of the purse. But in their finite wisdom, Democratic lawmakers gelded themselves. They also insulated the rogue agency from the courts, requiring that judges defer to the CFPB’s legal theories.

It’s pretty clearly an unconstitutional delegation of legislative power, although you can’t count on the Supreme Court enforcing the Constitution any more.

Some thoughts on President Obama’s recess appointments, now two weeks old:

• Clearly it’s appallingly hypocritical, even by the low standards of Congress, for Democrats now to oppose a tactic they invented just a few years ago to frustrate President Bush’s recess appointments.
• I think that Jonah Goldberg is right that Obama did this in order to try to pick a fight, for political purposes, and that Republicans are smart not to take the bait. And indeed, they don’t have to. There are plenty of other parties that have standing to challenge this appointments in court.
• In regard to the “Consumer Protection” agency, they will certainly win too, because the law is clear. Regardless of the legitimacy of the Cordray appointment itself, the law makes clear that Cordray will have no power until he is confirmed by the Senate, which still hasn’t happened (and now probably never will).
• John Elwood makes the case that the appointments are valid, because otherwise the Congress would have the power to frustrate the President’s constitutional authority. But I find John Yoo and Richard Epstein’s analyses more convincing. Both of them point out that President Obama is arrogating the authority to decide for Congress whether Congress’s session is a real one. To the contrary, the Constitution always grants each branch of government the power to make such decisions itself. (Epstein goes further and challenges the entire power of recess appointments as it is now used, but I don’t think we need to reach that.)
• The President’s claim that the Senate was not really in session because it didn’t do any work is particularly problematic because it actually did do some work during the session in question. This seems to make the White House’s position entirely untenable.
• Making the White House’s position even more absurd is the fact that just two years ago the Justice Department wrote an opinion acknowledging that the Senate could block recess appointments with pro forma sessions. (The letter was written by Elena Kagan, now a Supreme Court justice.) The White House sought and obtained a new opinion just two days before the recess appointments.

The DEA helped a Colombian drug lord smuggle cocaine and launder money:

U.S drug enforcement agents secretly helped a Colombian cocaine supplier launder millions of dollars in drug proceeds so they could infiltrate cartels working through the Mexico border, it has been revealed. . .

They carried out wire transfers for tens of thousands of dollars, smuggled millions in bulk cash and even escorted a shipment of cocaine through Ecuador, Dallas and finally Madrid.

This isn’t the first time either. With all of its effort spent assisting criminals, one wonders if Federal law enforcement has any time for actual law enforcement.

(Via Instapundit.)

The city of New London, Connecticut, has won a lawsuit over a discrimination claim filed by an applicant to the police force who wasn’t hired because he scored too high on an intelligence test.

As a matter of law, I think this is right. Smart people are not a protected class under discrimination law. On the other hand, it seems indefensible as public policy. Of course this is the same city that won the right to use imminent domain to condemn a neighborhood in order to turn it into a garbage dump, so stupidity must reign supreme there.

However, in a related item, the EEOC has ruled that employers may not require a high-school diploma without showing a business necessity. So it seems that (according to the Obama administration) uneducated  people are a protected class.

Eric Holder says that all the criticism of the Gunwalker scandal is because he is black:

“This is a way to get at the president because of the way I can be identified with him,” he said, “both due to the nature of our relationship and, you know, the fact that we’re both African-American.”

Really, Mr. Holder? Really?! The ATF trafficks thousands of weapons to Mexican drug cartels, makes no effort to track them, and won’t explain why. The Justice Department promotes the perpetrators, and punishes the whistleblowers, and obstructs the Congressional investigation. The US Attorney spits in the face of the victims. Holder himself can’t keep his story straight. And the only possible reason for someone to be upset is because Eric Holder is black?!

No, the person bringing race into this is you, Mr. Holder.

(Previous post.) (Via Ed Morrissey.)

More quotations from administration and ATF officials tying Gunwalker to the administration’s domestic gun-control agenda have surfaced:

There is no evidence the administration initially considered using the operation to justify stronger gun laws. But as the investigation dragged on, and Washington saw more and more weapons from U.S. gun stores show up at Mexican crime scenes, at least some officials saw a political argument developing to support their legislative agenda.

In March 2010, Holder’s Chief of Staff Gary Grindler attended a detailed briefing on Fast and Furious in Washington. In handwritten notes, Grindler wrote the words “long rifle,” “multiple sale” and “need regulation” in the margin of a briefing paper.

On July 14, 2010, Bureau of Alcohol, Tobacco, Firearms and Explosives Assistant Director Mark Chait asked then-ATF Phoenix Special Agent in Charge Bill Newell “if these guns were all purchased from the same (licensed gun dealer) and at one time. We are looking at anecdotal cases to support a demand letter on long-gun multiple sales.”

On Jan. 4, 2011, Newell apparently saw the opportunity to publicly push for the new gun regulation. The Fast and Furious news conference provides “another time to address multiple sale on long guns issue,” he wrote Chait.

A day after that news conference, Chait replied in an email: “Bill — well done yesterday … in light of our request for demand letter 3, this case could be a strong supporting factor if we can determine how many multiple sales of long guns occurred during the course of this case.”

The “demand letter” would require border-state gun stores to report buyers who try to purchase multiple rifles or long guns in a one-week period.

Two months earlier, U.S. Attorney Dennis Burke had an email exchange with his counterpart in Washington state, Jenny Durkan. Burke informed her of the Fast and Furious case and its use of straw buyers to deliver guns to Mexico that “have been directly traced to murders of elected officials in Mexico City by the cartels.”

Durkan wrote back: “Let me know when you have time to talk. I want to discuss our approach in enforcing gun sale laws at (gun stores) and gun shows.”

Some of these quotes are new; some we knew already.

As the article points out, this doesn’t mean that Fast and Furious was conceived as a scheme to promote domestic gun control (although the administration has yet to offer any alternative explanation consistent with the facts), but at the very least they did decide to exploit it that way after the fact.

(Previous post.)

A flashback to the genesis of the Gunwalker scandal:

The president has directed us to take action to fight these cartels and Attorney General Eric Holder and I [Deputy Attorney General David Ogden] are taking several new and aggressive steps as part of the administration’s comprehensive plan. . .

DOJ’s Bureau of Alcohol, Tobacco, Firearms and Explosives is increasing its efforts by adding 37 new employees in 3 new offices using $10 million dollars in Recovery Act funds and redeploying 100 personnel to the southwest border in the next 45 days to fortify it’s Project Gunrunner- which is aimed at disrupted arms trafficking between the United States and Mexico.

The announcement obviously didn’t say that those efforts would include trafficking guns to Mexican drug cartels while making no effort to track them. That, they didn’t know yet (probably). But, at the very least, it’s easy to see how it could happen: “Here’s a blank check — go do something!”

(Previous post.)

PJ Media reports:

A career employee in the Voting Section of Justice’s Civil Rights Division has confessed to committing perjury, sources say. The employee, Stephanie Celandine Gyamfi, reportedly told investigators from the Inspector General’s Office that she perjured herself during an inquiry into Justice Department leaks during the previous administration. Despite the admission, she has not been fired for criminal malfeasance. Indeed, it appears she has not been disciplined in any meaningful way at all. . .

Amazingly, despite Ms. Gyamfi’s admission of committing perjury not once, but three times, she so far has been neither terminated nor disciplined by the Justice Department. In fact, her boss, Voting Section Chief Chris Herren, continues to assign her to the most politically sensitive of matters, including the Department’s review of Texas’s congressional redistricting plan.

Now why on earth would the Justice Department let perjury slide? Wonder no longer:

The genesis of Ms. Gyamfi’s perjury is apparently rooted in political attacks on the Bush Justice Department. Throughout 2005-2007, numerous attorney-client privileged documents, confidential personnel information, and other sensitive legal materials were leaked from inside the Voting Section to the Washington Post and various left-wing blogs.

Now, the Obama administration cannot be held responsible for Gyamfi’s malfeasance, but they should be held responsible for their failure to discipline her. Not only have they let her off scot-free, they have continued to use her in precisely the area in which she has shown she cannot be trusted. And thus they support her actions after-the-fact.

(Via Hot Air.)

Four Democratic officials and operatives have pleaded guilty to a crime that we’re told never, ever happens.

And yes, there’s an ACORN connection.

I week ago I was troubled by reports that the new defense bill would give the president the power to detain US citizens indefinitely if they were supporting various terrorist groups. But almost immediately I read other reports that said that the bill actually did not change the law in this regard. Both reports came from respectable, knowledgeable people, and I was left confused.

Today I read two posts on law blogs that have left me convinced of the latter position, that the bill does not change the law in regard to detention of US citizens. In fact, it seems that the bill contains an amendment that states explicitly that it does not change the law on detention of US citizens.

Robert Chesney explains where the case law currently stands, and it strikes me as pretty reasonable. On foreign battlefields, US citizens can be detained like anyone else. On US soil, probably not. In a foreign theater but outside a battlefield, the law is uncertain, as no test case has yet arisen.

Kenneth Anderson adds that none of these detainees are beyond the reach of legal appeals:

Lastly, I’d add that in virtue of being statutorily prescribed as the court for hearing detainee appeals, the DC Circuit has emerged as something of the US’s de facto national security court; it has been gradually working out the contours and standards of habeas review and all the procedural and evidentiary questions that are implied by that.

I’d rather the rules were instituted by legislation, rather than made up by the courts, but that said, the rules the courts are adopting seem pretty reasonable.

The biggest question in the Gunwalker scandal is also the simplest: Why? The ATF trafficked thousands of weapons to Mexican drug cartels, making no effort to track them. Why do such a thing?

The administration has refused to answer this simple question. They continue to call it a “botched” operations, as though they accidentally gave criminals the money for weapons, they accidentally let the weapons walk, they accidentally ordered ATF agents not to track the weapons, and when one ATF agent did track the weapons in violation of those orders, they accidentally refused his calls for backup. Moreover, the people responsible for Gunwalker have all been promoted, which is not how one responds to a botch.

No, they sent those weapons to Mexican drug cartels on purpose, and they won’t say why.

In the absence of any explanation, we are left to speculate on our own. Did the administration deliberately channel weapons to Mexican drug cartels in order to bolster the false story that most guns used in Mexican crimes come from the United States, and thereby advance its domestic gun-control agenda?

I don’t want to believe that any American administration, even this one, could be capable of such a thing. But the evidence is mounting.

We learned in July that William Newell, the agent in charge of Fast and Furious, was being pressed for evidence to support a new policy restricting gun sales in border states. (The new policy was later put into effect despite the scandal.) But we didn’t have any information that specifically linked Fast and Furious to the political agenda. Until now.

Last week, the Justice Department handed over documents to Congress detailing the DOJ’s internal deliberation on how to respond to Congress’s demand for information on Gunwalker, and how it happened that nearly everything the DOJ ended up saying in response was false. What caught my eye in those documents was this:

[US Attorney Dennis] Burke wrote, “By the way, what is so offensive about this whole project” of response “is that Grassley’s staff, acting as willing stooges for the Gun Lobby, have attempted to distract from the incredible success in dismantling” Southwest Border “gun trafficking operations” . . .

(ASIDE: Burke’s name has come up in this story before.) By referring to the “Gun Lobby” here, Burke indicates that the administration’s gun-control agenda was a consideration in how it responded to the scandal. This doesn’t prove that Fast and Furious was originally conceived to advance a political agenda, but it does tie it to that political agenda after the fact.

The connection grew much stronger this week, with new documents obtained by CBS News:

On Jan. 4, 2011, as ATF prepared a press conference to announce arrests in Fast and Furious, Newell saw it as “(A)nother time to address Multiple Sale on Long Guns issue.” And a day after the press conference, Chait emailed Newell: “Bill–well done yesterday… (I)n light of our request for Demand letter 3, this case could be a strong supporting factor if we can determine how many multiple sales of long guns occurred during the course of this case.”

These emails make it clear that the gun-control agenda was part of Fast and Furious. Was there any other purpose to Fast and Furious? It’s high time the administration gave us an answer.

(Previous post.)

That’s Jon Corzine, Democrat, former US Senator and governor of New Jersey, testifying that he has no idea where the $1.2 billion stolen from his firm might have gone.

Kevin Williamson adds:

Anybody remember that this Wall Street Democrat used to sit on the Senate committees on banking and the budget?

Question: Why should we believe that the motives of people in (cough, cough) “public service” are different from the motives of people in the for-profit sector? Was Jon Corzine a rapacious self-seeker at Goldman Sachs, then a public-spirited man when he was in the Senate and in New Jersey’s governorship, only to revert to form when he went to MF Global? If you doubt that this is true, and suspect that Jon Corzine was the same guy all along, why would you want to give government more power?

Indeed.

The essence of the rule of law is that everyone knows what the rules are and can make decisions accordingly. It is antithetical to the rule of law that the government would have secret rules, rules that are not disclosed but that the country is answerable to nonetheless.

The Chicago machine is infamous for its contempt for the rule of law, so it’s not too surprising that, if you put the Chicago machine in charge of the federal government, you would get the same contempt at the federal level.

Two examples of secret rules from the Obama administration recently came to light:

One is out of the Justice Department, in which the voting section draws up its own redistricting plans to promote minority representation. The Justice Department rejects plans that don’t look enough like their own, but they won’t come out and reveal their plan.

The other is out of the Department of Education, in which the online colleges were audited using a new accounting rule that had never been disclosed to them.

Note that both instances advance the administration’s political interests. In the former case, the administration wants as many minority representatives as possible. In the latter case, the administration wants to hurt on-line schools (traditional schools were not judged using the new secret rule).

Holding back this sort of Chicago politics is exactly what the rule of law is for.

A few updates in the Gunwalker scandal:

• The Justice Department has taken its cover-up to a new level, deciding to seal all the records pertaining to Border Patrol agent Brian Terry’s murder. (Via Instapundit.)
• A new theory has been floated suggesting that an FBI informant is implicated in Terry’s murder. This would help explain why the FBI denies the existence of a third gun in Terry’s murder despite convincing evidence to the contrary. According to the theory, the FBI’s informant was carrying the third gun, so the FBI has covered it up to protect the informant.
• All of the managers of Operation Fast and Furious have been promoted, while most of the whistleblowers have been demoted.

I have to add, this third point is an outrage. The Justice Department has said that no one important was aware of Gunwalker. This is almost certainly a lie, but even if true, the DOJ’s leadership is certainly responsible for what they did after the scandal broke. What they did was reward the perpetrators. They have endorsed the operation after-the-fact.

(Previous post.)

The union on whose charges the NLRB based its horrible Boeing decision has dropped those charges. This is surely good news for Boeing in the short run; it is free to build its new plant in South Carolina. But I agree with Mario Loyola that this is a bad thing for our country (and for Boeing, in the long run).

We needed to strike down definitively the notion that the NLRB could tell businesses where to invest. That didn’t happen. We will certainly see this tactic again now, and until it happens, the possibility of a baseless lawsuit will hang over every business that considers investing in a right-to-work state.

The NLRB broke the law by coordinating its defense of its horrible Boeing decision (more on this in the next post) with the NLRB’s general counsel. Briefly:

Because the NLRB has within itself all of the governing powers our Founding Fathers believed should be separated (legislative, executive and judicial), its creators also wrote rules making it illegal for board employees who perform different functions from communicating with each other under certain circumstances.

If those protections don’t work any more, let’s abolish the board.

The NLRB may soon find itself without the necessary quorum to do business, and under the Obama administration, the NLRB’s business is to impose costly and oppressive labor rules on struggling businesses. Alarmed by the possibility that the NLRB may soon be neutered, the NLRB’s Democrats have hatched a plan whereby they would delegate their power to their general counsel Lafe Solomon.

ASIDE: This is the same Lafe Solomon who announced the NLRB’s appalling order barring Boeing from building a plant in South Carolina, and then made light of killing jobs in South Carolina and damaging the US economy.

Can they get away with this? Can the NLRB’s statutory requirement for a quorum be so easily side-stepped by having someone other than the board take actions on its behalf? I suppose the courts will decide.

A few updates in the Gunwalker scandal:

• Dennis Burke, a US Attorney appointed by President Obama who resigned three months ago, admits leaking a document that smeared a whistleblower. (Via Instapundit.)
• Eric Holder has changed his story regarding when he learned of Fast and Furious. This is not surprising, since we already knew Holder’s timeline was false.
• Andrew McCarthy explains why the Democrats’ efforts to distract us from Gunwalker using the Bush-era Operation Wide Receiver are nonsense. (His explanation is similar to mine.)
• The Justice Department stonewalled Congressional requests for information on Operation Wide Receiver for over a month so they could save those documents to make a big splash in the media on the eve of Congressional hearings. (Via Hot Air.)

(Previous post.)

Opposition to religion goes beyond preventing coercion. The Freedom from Religion Foundation, at least, wants to ban even voluntary prayer wherever they can see it. Thanks to them, Clay County, Florida, has banned morning prayer sessions at school flagpoles.

Alas, this is hardly atypical, and it got me thinking. If religion is going to be completely banned from the public square (not to say that that is going to happen, but it’s clearly what the militant atheists want), it’s another argument against having a public square. Privatize everything, and then free people can decide what free people will do. Religious people will frequent establishments that allow prayer, and militant atheists can stick to ones that ban it.

The White House is refusing to comply with Congressional subpoenas for documents pertaining to the Solyndra scandal. The excuse they’ve concocted is that the subpoenas are too broad:

White House Counsel Kathryn Ruemmler said in a letter to GOP leaders of the Energy and Commerce Committee that the information that they’ve demanded via subpoena appears focused on a “general curiosity about internal White House communications.”

I guess this is a White House lawyer thing, because this doesn’t sound so broad:

The subpoenas seek “all documents referring or relating to any investor in Solyndra” including financial contributions from investors and “the influence of campaign contributions on the decision whether or not to grant or restructure the Solyndra loan guarantee.”

That sounds like exactly what we want to learn: how much influence Solyndra and its investors bought, and what happened as a result.

(Previous post.)

No one accuses the Obama administration of excessive transparency, but the administration still wants to spare itself the heavy burden of defending its denials of FOIA requests:

Under the new rules, the government could falsely respond to those who file FOIA requests that a document does not exist if it pertains to an ongoing criminal investigation, concerns a terrorist organization, or a counterintelligence operation involving a foreign nation.

There are two problems with the Obama proposal to allow federal officials to affirmatively assert that a requested document doesn’t exist when it does. First, by not citing a specific exemption allowed under the FOIA as grounds for denying a request, the proposal would cut off a requestor from appealing to the courts. By thus creating an area of federal activity that is completely exempt from judicial review, the proposal undercuts due process and other constitutional protections. . .

Under FOIA’s current national security exemption, bureaucrats can already deny access to documents without acknowledging their existence. . . In instances where there is a legitimate grounds for not confirming a document’s existence, “the agency should simply respond that ‘we interpret all or part of your request as a request for records which, if they exist, would not be subject to the disclosure requirements of FOIA pursuant to section 552(c), and we therefore will not process that portion of your request.’ This response requires no change to the current FOIA regulation.” Such a response would preserve a requestor’s right to appeal to a federal court.

Getting rid of those pesky appeals is the point.

Additionally, the administration wants to be able to stall FOIA requests indefinitely by resetting the clock every time they refer a request between departments; they want to remove the duty of department heads to stand by their FOIA denials; they want to create lots of new flimsy excuses to deny FOIA requests; and they want to make it much harder to qualify for fee waivers.

So let’s please not have any more nonsense about the left’s dedication to transparency.

(Via Instapundit.)

UPDATE: Having received a lot of well-deserved bad press over this, the administration is giving up for now.

The FBI has released documents on its quiet investigation of the late John Murtha (D-PA). The FBI’s conclusions will not be surprising to anyone familiar with Murtha:

The FBI field agents concluded that “the relationships between Congressman John Murtha … and employees and partners of KSA Consulting provide for a potential Honest Services Fraud … if Congressman Murtha influenced the awarding of contracts to KSA-controlled entities or clients, in exchange for some personal benefit to the Congressman. KSA principals may also have committed Honest Services Fraud by lobbying Murtha to direct earmarks to KSA clients who ‘passed-thru’ the funds to subcontractor firms that did little actual work and were owned by KSA principles.”

No one was ever charged in the investigation. The reason is not clear from the documents.

(Via Instapundit.)

How would an administration behave if it were innocent of wrongdoing? Not like this:

The House Committee on Oversight and Government Reform led by Rep. Darrell Issa (R-CA) is investigating to what extent the White House was aware of — or involved in — the “Fast and Furious” gunwalking scandal.

The committee recently requested to speak with former White House National Security Staffer Kevin O’Reilly. According to CBS News reporter Sharyl Attkisson, the Obama administration answered:

O’Reilly is on assignment for the State Department in Iraq and unavailable.

Through a tip, PJ Media learned that Kevin O’Reilly was unexpectedly named director of the International Narcotics and Law Enforcement Bureau for Iraq (INL-Iraq). Long-time INL-Iraq employee Virginia Ramadan had been expected to get the position — many were quite surprised when she did not.

The previous occupants of the Director, INL-Iraq position — Joe Manso and Francisco Palmieri — were not considered “unreachable” to press or government access. A quick internet search reveals Palmieri, while director, attended a media event on August 23, 2010.

On October 21, PJ Media reporter Patrick Richardson called the number for Office of the Director, INL-Iraq. . . Richardson reached a voicemail message confirming that it was indeed the correct number. He left a message that was not returned.

On Monday Richardson called again, and an assistant answered. Richardson asked to speak with Kevin O’Reilly, and the assistant asked who was calling. Richardson gave his name and stated he was with PJ Media. The assistant said O’Reilly was currently on a conference call, and asked if Richardson wanted to leave a message. Richardson gave his phone number. His call was not returned.

This morning, Richardson called again. He received a prerecorded message saying “this number is not in service.”

(Previous post.)

Remember the Ground Zero Mosque? It faded from the headlines when it seemed that all the obstacles to the project were exhausted, but another legal battle has arisen. The mosque developer has a lease on the neighboring property, and its owner, Con Ed, is demanding $1.7 million in back rent.

I hope the mosque developers lose, because what they are trying to do is extraordinarily unseemly. But more than that, I hope that the legal process is carried out without political interference. The terms of the lease (which I have not seen reported anywhere) should govern the dispute.

(Previous post.)

Andrew Stiles takes a look at the creative legal reasoning the Obama administration used to justify ignoring the plain meaning of the law and go ahead with the ill-fated Solyndra loan.

(Previous post.)

The Justice Department is categorically denying that a third gun was recovered from Border Patrol agent Brian Terry’s murder. Or maybe not; the denial seems to be carefully worded to leave some wiggle room:

“The FBI has made clear that reports of a third gun recovered from the perpetrators at the scene of Agent Terry’s murder are false,” the department said in a statement Monday.

Meanwhile, Bob Owens reviews the extensive evidence suggesting a third gun was recovered.

(Previous post.)

On May 3, Eric Holder said that he had learned of the Gunwalker scandal “over the last few weeks”. But President Obama was aware of the scandal by March 22. That’s six weeks.

It’s just not plausible that the president would be aware of the scandal weeks before the attorney general, so I’m sure they will argue that six weeks counts as a “few weeks”. But that’s certainly not the impression that Holder was trying to give by saying “last few weeks” instead of “last couple of months”.

(Previous post.)

Darrell Issa has sent back a blistering response to Eric Holder’s disingenuous Gunwalker letter. There are two points to highlight. First, Issa reveals more about the briefing that Gary Grindler (former Deputy Attorney General and now Holder’s chief of staff) received:

Gary Grindler, the then-Deputy Attorney General and currently your Chief of Staff, received an extremely detailed briefing on Operation Fast and Furious on March 12, 2010. In this briefing, Grindler learned such minutiae as the number of times that Uriel Patino, a straw purchaser on food stamps who ultimately acquired 720 firearms, went in to a cooperating gun store and the amount of guns that he had bought. When former Acting ATF Director Ken Melson, a career federal prosecutor, learned similar information, he became sick to his stomach. . .

At the time of his briefing in March of last year, Grindler knew that Patino had purchased 313 weapons and paid for all of them in cash. Unlike Melson, Grindler clearly saw nothing wrong with this. If Grindler had had the sense to shut this investigation down right then, he could have prevented the purchase of an additional 407 weapons by Patino alone. Instead, Grindler did nothing to stop the program.

Following this briefing, it is clear that Grindler did one of two things. Either, he alerted you to the name and operational details of Fast and Furious, in which case your May 3, 2011 testimony in front of Congress was false; or, he failed to inform you of the name and the operational details of Fast and Furious, in which case Grindler engaged in gross dereliction of his duties as Acting Deputy Attorney General.

Second, he notes that the Justice Department has repeatedly lied as the scandal unfolded:

Perhaps the most disturbing aspect of this intransigence is that the Department of Justice has been lying to Congress ever since the inquiry into Fast and Furious began. On February 4, 2011, Assistant Attorney General Ronald Weich wrote that “ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transport into Mexico.” This letter, vetted by both the senior ranks of ATF as well as the Office of the Deputy Attorney General, is a flat-out lie.

(Previous post.)

Eric Holder has said that no one in the “upper levels of the Justice Department” knew about Gunwalker. Recently he has refined that blanket statement, explaining that officials were briefed on Fast and Furious, but were unaware that it involved “unacceptable tactics”.

Is it true? It seems hard to believe that so many agencies could be involved in Gunwalker, and that so many officials could be briefed on the operation, without anyone demanding some details. We have a specific case in Gary Grindler, former Deputy Attorney General and now Holder’s chief of staff.

Grindler has been on our radar screen for a while, but we now have learned that he received a detailed briefing on Fast and Furious in March 2010. Holder says he doesn’t pay attention to all his briefings but we know that Grindler paid attention to this one because he took notes:

In handwritten notes about Fast and Furious that are not all legible, Grindler writes about “seizures in Mexico” and “links to cartel.” He also noted “seizures in Mexico” on a map of Phoenix, the home base for Fast and Furious, and Mexico locations where some guns ended up. And Grindler made notations on a photograph of several dozen rifles.

There is no specific mention of the controversial tactic known as “letting guns walk” which, law enforcement sources say, was the heart of the Fast and Furious case.

Okay, so there’s no specific mention in the notes of letting guns walk deliberately. But there is specific mention that the guns are making it to Mexican drug cartels. So, at a minimum, it was clear that the operation was a disaster. Grindler should have demanded to know how the guns were getting away. Did he? If not, it sounds like willful blindness.

(Previous post.)

In Eric Holder’s recent letter to Congress proclaiming his innocence in the Gunwalker scandal, he alluded to a similar operation that took place during the Bush administration:

It has become clear that the flawed tactics employed in Fast and Furious were not limited to that operation and were actually employed in an investigation conducted during the prior Administration.

If true, this would hardly excuse the administration, since the scandal is at least as much about the ham-handed cover-up as it is about the original malfeasance. Nevertheless, I was skeptical. If the Bush administration had really run a similar operation, surely the Obama administration would be shouting it from the rooftops.

I was right to be skeptical. It seems that Holder was referring to Operation Wide Receiver, which was similar to Gunwalker in that it allowed straw purchases of weapons to go forward, and ultimately lost track of the weapons.

But there is a major difference between Wide Receiver and Gunwalker. In Wide Receiver, the ATF actually tried to follow the weapons! In Gunwalker they did not.

Wide Receiver was ill-conceived and poorly executed, but it was intended to track weapons. No one in the Justice Department has yet produced a plausible explanation for what Fast and Furious was intended to do. If Holder really thinks the two are similar (unlikely), he completely misunderstands the nature of the scandal.

Wide Receiver also differs from Gunwalker in magnitude. Wide Receiver lost track of 450 guns and was quickly shut down. Gunwalker lost thousands in Fast and Furious alone, and there are allegations of similar operations in several other cities.

It would not excuse Gunwalker even if the two operations were similar, since the ATF ought to have learned from its earlier mistakes, but, in fact, the similarity is only superficial.

(Via Pajamas Media.) (Previous post.)

Months after the Gunwalker scandal erupted, Eric Holder has undertaken to write a letter to Congress on the subject. It breaks very little new ground. He:

• continues to deny any knowledge of the “unacceptable tactics” employed in Fast and Furious,
• says that Fast and Furious was a flawed response to the important problem of gun trafficking into Mexico (ASIDE: it’s not nearly as important as gun-control advocates pretend),
• berates Congress for not doing anything about that problem,
• demands that Congress “denounce” a Republican member (presumably Paul Gosar) who said those responsible for Gunwalker are “accessories to murder”,
• and claims that gunwalking was going on during the Bush administration as well.

The final claim is interesting, but I won’t believe it without hearing some details. If it were true, they would have been trumpeting it for some time now.

Questions Holder did not address include:

• Why were those responsible for Gunwalker promoted instead of disciplined?
• How could so many different agencies be involved in Gunwalker without any high-ranking officials being aware of it?
• Is the FBI covering up a third Gunwalker gun used in the Terry murder, as multiple sources suggest?
• Why was the ATF permitted to retaliate against the agents who blew the whistle on Gunwalker?
• Why was the ATF permitted to stonewall Congress’s investigation, to the extent that it required contempt proceedings before they produced any documents?
• Why was the ATF permitted to limit its agents’ testimony to Congress?
• Why did the Justice Department withhold information it had in its possession from Congress?
• Why did the Justice Department say that no ATF agents witnessed the transfer of weapons to third parties, when the opposite is true?
• Why is Holder so concerned about harsh rhetoric directed at ATF agents who broke the law and trafficked weapons to Mexican drug cartels?
• Finally, what was the ATF trying to accomplish by trafficking guns to Mexican drug cartels and making no attempt to track them? Why hasn’t anyone tried to answer this question, even at this very late date?

(Via the Corner.) (Previous post.)

The Washington Post reports:

Energy Department officials were warned that their plan to help a failing solar company by restructuring its $535 million federal loan could violate the law and should be cleared with the Justice Department, according to newly obtained e-mails from within the Obama administration.

The e-mails show that Energy Department officials moved ahead anyway with a new deal that would repay company investors before taxpayers if the company defaulted. The e-mails, which were reviewed by The Washington Post, show for the first time concerns within the administration about the legality of the Energy Department’s extraordinary efforts to help Solyndra, the California solar company that went bankrupt Aug. 31.

But the Energy Department didn’t go to the Office of Legal Counsel for advice (which saved them the trouble of ignoring their conclusions). Instead they went with an in-house attorney that produced the demanded result:

An Energy spokesman, Damien LaVera, said agency officials had listened to Treasury’s advice to consult the Justice Department on the loan restructuring but felt it was appropriate to move forward. “Ultimately, DOE’s determination that the restructuring was legal was made by career lawyers in the loan program based on a careful analysis of the statute,” he said.

By the way, the statute seems quite clear:

(3) SUBORDINATION.—The obligation shall be subject to the condition that the obligation is not subordinate to other financing.

I don’t see the wiggle room by which the DOE lawyer turned “is not”  into “can be”.

POSTSCRIPT: The Washington Post story has another revelation too. A key administration official pushed for the Solyndra loan despite being recused for a conflict of interest:

[Steve] Spinner came from Silicon Valley to serve as a senior adviser on the loan program, and his wife was a lawyer with Wilson Sonsini, the law firm representing Solyndra in its application. Despite an ethics agreement under which he said he would recuse himself from Solyndra’s loan application, correspondence shows that Spinner defended the company, worked to get the president or vice president to visit its factory, and pushed for a final decision on approving the company’s loan.

“How [expletive] hard is this?” Spinner wrote to a career staffer on Aug. 28, 2009, asking for answers about final approval from an OMB official. “What is he waiting for? Will we have it by the end of the day?”

In an Aug. 19, 2009, e-mail, an aide to then-White House Chief of Staff Rahm Emanuel asked Spinner if he could discuss any concerns among the investment community about Solyndra.

Spinner dismissed the idea that Solyndra had financial problems. “I haven’t heard anything negative on my side,” he said. . .

Spinner is now a fellow at the Center for American Progress, a Democratic think tank.

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Newly released emails show that the White House received and disregarded several warnings about the insolvency of Solyndra. Nevertheless, President Obama says he had no regrets sinking half a billion dollars into Solyndra.

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Try to watch this video without becoming enraged:

Why is the government picking on Caswell? As Willie Sutton famously (and apocryphally) said, that’s where the money is:

Of course, the Motel Caswell is not the only property in Tewksbury that has had run ins with crime. According to police logs, the Motel 6, the Fairfield Inn, and even the nearby Wal-Mart and Home Depot parking lots have similar problems. But those properties are corporate-owned, which means the government would have to fight teams of lawyers to take them. And, importantly, the Caswells own their property free and clear, which makes them the perfect target for a government interested in policing for profit: the Caswells are vulnerable and their property is valuable.

The Tewksbury government is engaging in robbery, pure and simple. And they’re being abetted by the federal government. The only difference between this and a criminal enterprise is a lot of criminal enterprises deliver products that people actually want.

(Via Instapundit.)

A group called the Independent Democratic Conference wants to revoke the right to free speech, and replace it with a privilege that the government can revoke. They write (yes, they really did issue their report in all caps):

PROPONENTS OF A MORE REFINED FIRST AMENDMENT ARGUE THAT THIS FREEDOM SHOULD BE TREATED NOT AS A RIGHT BUT AS A PRIVILEGE – A SPECIAL ENTITLEMENT GRANTED BY THE STATE ON A CONDITIONAL BASIS THAT CAN BE REVOKED IF IT IS EVER ABUSED OR MALTREATED.

Of course, we’ve sadly had plenty of occasion this year to learn what the left views as an abuse of free speech.

The authors of this piece aren’t major policy players, thankfully, but they aren’t nobodies either. According to TechDirt (the piece itself doesn’t list any authors), they are New York state senators.

(Via Instapundit.)

In our latest instance of corruption in Eric Holder’s Justice Department, an official in the Civil Rights Division abused his government-issued credit card to take romantic trips at taxpayer expense, and even took out cash advances. Once his actions were discovered, not only was he not disciplined, they didn’t even take the card away, and he continued to abuse it.

(Via Instapundit.)

CBS News reports:

New documents obtained by CBS News show Attorney General Eric Holder was sent briefings on the controversial Fast and Furious operation as far back as July 2010. That directly contradicts his statement to Congress.

On May 3, 2011, Holder told a Judiciary Committee hearing, “I’m not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks.”

CBS uncovered two memos addressed to Holder that mentioned Fast & Furious, one from July 2010 and the other from November 2010. The July 2010 memo contained some various specific information:

From July 6 through July 9, the National Drug Intelligence Center Document and Media Exploitation Team at the Phoenix Organized Crime Drug Enforcement Task Force (OCDETF) Strike Force will support the Bureau of Alchohol, Tobacco, Firearms, and Explosives’ Phoenix Field Division with its investigation of Manuel Celis-Acosta as part of OCDETF Operation Fast and the Furious. This investigation, initiated in September 2009 in conjunction with the Drug Enforcement Administration, Immigration and Customs Enforcement, and the Phoenix Police Department, involves a Phoenix-based firearms trafficking ring headed by Manuel Celis-Acosta. Celis-Acosta and [redacted] straw purchasers are responsible for the purchase of 1,500 firearms that were then supplied to Mexican drug trafficking cartels. They also have direct ties to the Sinaloa Cartel which is suspected of providing $1 million for the purchase of firearms in the greater Phoenix area.

(Emphasis mine.)

So Holder was definitely informed of an operation called Fast and Furious. The document doesn’t specifically refer to guns walking, but it does say that the firearms in question were supplied to Mexican drug cartels, which (as Allahpundit points out) is never supposed to happen in ATF sting operations. This should have raised a red flag.

Some of Holder’s chief deputies were certainly aware of guns being walked. (Eric Holder’s chief of staff for one, according to Rep. Issa and Senator Grassley.) Another document obtained by CBS shows an email conversation between Jason Weinstein, Deputy Assistant Attorney General of the Criminal Division, and James Trusty, Deputy Chief of the National Gang Unit. They discuss gunwalking explicitly:

WEINSTEIN: Do you think we should try to have Lanny [Breuer, Assistant Attorney General for the Criminal Division] participate in press when Fast and Furious and Laura’s Tucson case are unsealed? It’s a tricky case, given the number of guns that have walked. . .

TRUSTY: I think so, but the timing will be tricky, too. . . It’s not going to be any big surprise that a bunch of US guns are being used in MX, so I’m not sure how much grief we get for “guns walking.” It may be more like, “Finally, they’re going after people who sent guns down there.”

(Emphasis mine.)

This shows that Weinstein and Trusty specifically knew that guns were walking. (Eric Holder said last month that no one in “the upper levels of the Justice Department” knew about Gunwalker.) It also shows that the “tricky” issue of gunwalking was specifically being considered by the people who set Lanny Breuer’s schedule.

ASIDE: Worse, the email also shows that these guys were thinking about gunwalking in the context of “going after people who sent guns down there”, which is to say, their gun-control agenda.

The DOJ replied to this with a howler:

The Justice Department told CBS News that the officials in those emails were talking about a different case started before Eric Holder became Attorney General.

Impossible. The documents mention Fast and Furious by name. The DOJ also said:

And tonight they tell CBS News, Holder misunderstood that question from the committee – he did know about Fast and Furious – just not the details.

We can believe that, or not. It’s not very plausible, given how many people around him knew, and anyway, Holder’s words were quite specific:

I probably heard about Fast and Furious for the first time over the last few weeks.

That statement, incidentally, was made under oath.

Now the Justice Department has fallen back on an even more basic defense. They say that Holder doesn’t always read his briefings. Terrific.

(Via Power Line.)

UPDATE: Holder must have ignored at least five memos.

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