- The White House Domestic Policy Council formulated a plan to solicit a letter from an outside group that is “not the usual suspects” (meaning not a group known to be political like a teachers’ union) warning that parents’ complaints were rising to the level of domestic terrorism.*
- The White House coordinated the letter with Viola Garcia, the president of the NSBA.
- Despite being filled with links, the letter contains virtually no evidence to support its main contention.
- Garcia and another executive sent the letter without the approval of the NSBA board. (The board latter repudiated the letter, but not in time to avoid serious blowback, as several state associations have broken ties with the NSBA.)
- After sending the letter, Garcia was appointed to a federal oversight board. (This is new information today.)
- Attorney General Merrick Garland announced a federal investigation of school board protesters. Ostensibly the investigation is a result of the letter, but it was announced with such speed that most observers conclude it must have been in the works already.
- When questioned before the House, Garland conceded that he had no evidence of a “disturbing spike of harassment, intimidation, and threats of violence” beyond the NSBA letter (than the White House solicited and helped write).
- Rep. Nadler (D-NY) cut off Rep. Jordan (R-OH) before he could probe further.
I saw this article this morning:
A judge ruled yesterday that the Federal Election Commission could go ahead with a sharply limited investigation of the Reader’s Digest for distributing videotapes about Senator Edward M. Kennedy’s automobile accident at Chappaquiddick. . .
The case grew out of an article in the magazine last year about the 1969 accident on the island of Chappaquiddick. . . The publisher, the Reader’s Digest Association, distributed to television stations videotapes of a computer re-enactment of the accident, presumably to promote the article.
Last August the Federal Election Commission received a complaint from an Oregon resident saying that the publisher had distributed the tapes to harm Senator Kennedy’s race for the Democratic Presidential nomination, thereby making campaign contributions that were not permitted to corporations.
This was making the rounds because of the Chappaquiddick movie, but I think it’s very interesting it its own right. Recall Citizens United, the 2010 Supreme Court decision that found that the First Amendment’s protection of free speech applies to everyone, including people who work for corporations. Many on the left were very upset about the decision, feeling that corporations (and, by extension, their staff) ought not to have the right to free speech.
Whenever anyone raises the horror of corporations speaking, I point out that essentially every single newspaper, magazine, publishing house, television network, movie studio, record label, social-media platform, church, private university, and special-interest group is a corporation. If you exclude corporation from free speech, you have eviscerated free speech.
Some have countered that when free-speech protection is removed from those institutions, they will continue to be protected by the freedom of the press. (Well, not churches, etc., but let’s set them aside for now.) There are few problems with this theory. First, it’s wrong as a matter of legal precedent and history. As Eugene Volokh explains, the freedom of speech and the press are a single clause; the press is mentioned in order to clarify that the freedom is not limited to spoken communication. But as a novel legal theory, I guess it was good enough for the Citizens United dissenters.
But, returning to the article, this Readers Digest incident shows how threadbare that protection would be. Here you have a major magazine, unambiguously protected by the Freedom of Speech, and a court still found that it might be improper for them to publish material outside their usual medium!
And don’t be consoled by the fact that the FEC’s investigation ultimately went nowhere (I assume). Free speech requires breathing room, and an investigation alone is enough to create a chilling effect. As a Washington Post writer put it in 1981:
If the commission insists on following the pattern it has established, every news organization in the country taking a position on any national candidate could find itself having to prove in exhausting, unnecessary and ridiculous detail that it is not a political entity and has not illegally used corporate funds in performing its clear First Amendment prerogatives.
Some senior U.S. officials involved in the implementation of the Iran nuclear deal have privately concluded that a key sanctions relief provision – a concession to Iran that will open the doors to tens of billions of dollars in U.S.-backed commerce with the Islamic regime – conflicts with existing federal statutes and cannot be implemented without violating those laws, Fox News has learned.
But so what if it’s illegal? Does that still matter any more?
Despite reports to the contrary, Hillary Clinton is adamant that she never sent classified information over her illegal private server:
“I am confident I never sent nor received any information that was classified at the time it was sent and received,” Clinton said. “What I think you’re seeing is a very typical kind of discussion to some extent, disagreement among various parts of the government over what should or what should not be publicly released.”
This story directly contradicts the Inspector General, who said the emails “were classified when they were sent and are classified now.
But now it gets worse:
Classified emails stored on former Secretary of State Hillary Clinton’s private server contained information from multiple intelligence agencies in addition to data connected to the 2012 Benghazi attack, a source familiar with the investigation told Fox News.
The information came from the National Security Agency, the Defense Intelligence Agency, the National-Geospatial Agency, as well as the Office of the Director of National Intelligence and the Central Intelligence Agency, the source said.
It got so bad the intelligence community started cutting the State Department out of the loop:
The official responsible for overseeing the government’s security classification system, John Fitzpatrick, told McClatchy Newspapers that while reviewing four years of Clinton’s emails, intelligence agencies grew concerned that State Department officials were not guarding classified information in screening documents for public release.
The State Department actually posted one classified email in its entirety on a public website.
The lawyers for a class-action suit against Warner/Chappell Music claiming that the famous song “Happy Birthday” is actually in the public domain appear to have found the proverbial smoking gun. The newly discovered documents seem to show not only that the song entered the public domain no later than 1922, but also that Warner/Chappell knew it, and deliberately covered up the fact.
If Warner/Chappell really covered up the fact that the song was in the public domain, it seems to me that they committed fraud, and should be liable for damages at least to everyone who paid to license the song.
Literally nothing Hillary Clinton has said about her use of an external email account has turned out to be true: She said that she just wanted to have everything on one device. (As if you can’t have multiple email accounts on a single device, but never mind that.) False. She said the account was used for private correspondence with her husband. False. She said she turned over everything work-related. Not even close to true. She said she was never subpoenaed over it. False. Some of the emails she actually did turn over, she edited before doing so!
In the latest development, Clinton says that no classified material was ever sent using the external account. (This claim was made in the wake of the disclosure that two different Inspectors General are trying to open a criminal inquiry into her actions.) Their story was that any classified information was only classified after the fact:
A spokesman for Mrs. Clinton’s campaign released a statement on Twitter on Friday morning. “Any released emails deemed classified by the administration have been done so after the fact, and not at the time they were transmitted,” it read.
As Ed Morrissey points out, this would mean that she exercised very bad judgement — transmitting sensitive material on an unsecured system — even if technically no law had been broken.
But never mind, because this story too was a lie:
An internal government review found that former Secretary of State Hillary Clinton sent at least four emails from her personal account containing classified information during her time heading the State Department.
In a letter to members of Congress on Thursday, the Inspector General of the Intelligence Community concluded that Mrs. Clinton’s email contains material from the intelligence community that should have been considered “secret” at the time it was sent, the second-highest level of classification. A copy of the letter to Congress was provided to The Wall Street Journal by a spokeswoman for the Inspector General.
The four emails in question “were classified when they were sent and are classified now,” said Andrea Williams, a spokeswoman for the inspector general. The inspector general reviewed just a small sample totaling about 40 emails in Mrs. Clinton’s inbox—meaning that many more in the trove of more than 30,000 may contain potentially secret or top-secret information.
(Emphasis mine.) Also note the numbers. Out of 40 emails, four of them (that is, 10%) contained classified information. It’s reasonable to extrapolate that there could be thousands of such.
The Supreme Court ruled against the EPA today, finding that the EPA must take cost into account when deciding whether to regulate power plants. But don’t be too excited. (Or, if you favor regulating coal-fired power plants out of existence, don’t be too disappointed.) The Court leaves up to the EPA how to account for cost, so the EPA will simply come up with an accounting scheme that will justify doing the exact same thing.
The main benefit of this is to delay the regulations, perhaps long enough to elect a new president. But I wouldn’t even count on that. Rather than restarting the process from scratch, I expect that the EPA will try to rush through a new “appropriate and necessary” finding, and then use the same regulations it already devised.
So, I saw this cross my Twitter feed:
This gives the impression that Texas is preparing to ignore the Supreme Court ruling. That would be surprising, and in fact, the actual facts are a bit different:
He said his office believed state religious freedom laws would allow clerks to refuse to issue marriage licenses to same-sex couples if they have sincerely held beliefs that prohibit them from doing so, and if there was someone else present – like a deputy – who would be willing to service the couple.
So, it’s not that Texas is going to deny same-sex couples a marriage license. Rather, some government agents empowered to issue licenses might decline to do so, leaving it to others to do so. Paxton went on to say that anyone who tried it should expect to get sued. (That’s for sure!)
This may or may not be legally defensible (I am not a lawyer), but I think it’s wrong. If it’s part of your job to issue marriage licenses, it’s part of your job. If government provides a service, its agents should provide that service to everyone entitled to receive it, without adding additional inconvenience for applicants you’d rather not serve. (ASIDE: This principle is routinely flouted in applications for firearms permits, and that too is an outrage.)
But let’s suppose that Texas really were going whole hog, and simply ignoring the Supreme Court ruling. That would certainly be wrong. It’s also exactly what the Democrats were talking about doing if they lost in King v. Burwell (the Obamacare subsidy case). From the pages of the New York Times:
Luckily the Constitution supplies a contingency plan, even if the administration doesn’t know it yet: If the administration loses in King, it can announce that it is complying with the Supreme Court’s judgment — but only with respect to the four plaintiffs who brought the suit.
This announcement would not defy a Supreme Court order, since the court has the formal power to order a remedy only for the four people actually before it. The administration would simply be refusing to extend the Supreme Court’s reasoning to the millions of people who, like the plaintiffs, may be eligible for tax credits but, unlike the plaintiffs, did not sue.
The whole matter became moot when they won the case, but back when they looked likely to lose, this scheme was the talk of the town. We certainly never saw anyone from the White House rule it out.
The analogous scheme regarding Obergefell would have been to issue marriage licenses to the 14 plaintiffs, but otherwise ignore it. I trust that progressives have no trouble seeing that such a response would be lawless and wrong. But that’s exactly what they wanted to do prop up Obamacare.
For some time, the ACLU has been lukewarm at best toward religious freedom, but now they have officially come out against it:
The ACLU supported the RFRA’s passage at the time because it didn’t believe the Constitution, as newly interpreted by the Supreme Court, would protect people such as Iknoor Singh, whose religious expression does not harm anyone else. But we can no longer support the law in its current form. For more than 15 years, we have been concerned about how the RFRA could be used to discriminate against others.
It’s useful to start by looking at what the 1993 Religious Freedom Restoration Act actually says. The key provision says:
(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
This means that “strict scrutiny” (the standard used for freedom of speech) applies in all religious freedom cases. This was the precedent until 1990, when the Supreme Court ruled the government could burden religious freedom pretty much as much as it wanted, provided that the law applied to everyone equally. Thus, for example, the government could ban circumcision — a key ritual for Jews for thousands of years — provided the ban applied to everyone equally. (Alas, this example is not entirely hypothetical.) The RFRA sought to restore the old standard; it passed almost unanimously and was signed by President Clinton. (The Supreme Court later narrowed it to federal cases only, which is what occasioned many states to pass their own RFRAs.)
So if you say you are against the RFRA, you need to say what you think should change. You have three possibilities: (1) the government should be able to burden religion without a compelling government interest, (2) the government should be able to burden religion more than necessary, or (3) both. So which is it, ACLU?
Okay, but what about discrimination? The ACLU opines:
In the states, legislators, governors and businesses are citing state religious freedom restoration acts to justify all manner of discrimination against gay men and lesbians, including at commercial establishments.
Okay, perhaps they have been citing it, but how many of them have been successful? I believe the answer is zero. (Indeed, hardly any have even gone to court.) The reason is that ending discrimination has been found to be a compelling government interest, and prohibiting it is arguably the least restrictive way of ensuring it doesn’t happen. (ASIDE: As a libertarian, I think that all virtually exchanges should be voluntary. But we’re talking here about what the law is.)
Is the ACLU conceding that ending discrimination is not a compelling government interest? That would be a surprise. And if not, what are they saying? They don’t say; in fact, they say nothing about the actual content of the law at all.
I think the whole discrimination thing is a smokescreen. This is what it’s all really about:
In the Hobby Lobby case last year, a Supreme Court majority blessed the use of the RFRA by businesses to deny employees insurance coverage for contraception, a benefit guaranteed by law, if those businesses object on religious grounds and there is some other means of furthering the government’s interests.
Yes, it did. The Obama administration (not the Congress, mind you, just the HHS department) sought to force Christian employers to violate their beliefs by paying for abortion drugs. This plainly violates strict scrutiny, since the government could easily arrange for employees to have such drugs without requiring the employer to pay for them — for example by the government paying for them itself.
This would be just like the government mandating that all restaurants serve bacon (yum!) — including kosher and halal restaurants.
Except that it’s not Jews or Muslims. It’s not native Americans. It’s not Sikhs. It’s Christians, and I think that’s the point.
The ACLU suddenly realized that it was against religious freedom as soon as it was used by Christians, instead of various religious minorities.
Remember the IRS scandal? It faded from the headlines, but it never ended, as the IRS never actually changed its behavior.
One of the organizations that the IRS has been discriminating against is Z Street, a pro-Israel group. Z Street sued the IRS, demanding that its tax exempt application be considered in a fair process. The IRS argued in court that Z Street had no right to a fair process.
No kidding, that’s exactly what they argued. The IRS argued that, since Z Street could appeal the rejection of its application after nine months, they had no need for legal action:
The agency argued that Z Street was seeking non-profit status, and that this could be remedied outside of court if the group waited for the government-prescribed 270-day period process where it was not subject to discriminatory delays because of its positions on Israel.and then petitioned the for an IRS ruling.
However, Z Street argued that it was not seeking non-profit status, but rather a fair application process where it was not subject to discriminatory delays because of its positions on Israel.
During the hearing, Chief Judge Merrick Garland was highly critical of the IRS’s defense.
“You don’t really mean that, right?” said Judge Garland to the IRS attorney. “Because the next couple words would be the IRS is free to discriminate on the basis of viewpoint, religion, race [for 270 days]. You don’t actually think that?” . . .
While the panel of judges was more subdued in the Friday ruling, it still dismissed the government’s argument against Z Street.
What possible reason is there to suppose that that isn’t exactly what the IRS thinks? We’ll have the opportunity to find out now, as Z Street finally has the right of discovery.
As a libertarian, I’ve long felt that people should be able to form whatever partnerships they want to form, without interference from the government. However, as a constitutionalist, I’ve long felt that that change should be made by the legislative process, not by judicial fiat. In any case, this outcome was so obviously going to happen, I cannot muster much satisfaction or much outrage. I pretty much priced it in long ago.
Ideally, the government should now get out of the marriage business entirely. Let any two (or more) people form whatever relationship they choose, and then let society decide which ones they wish to respect. If not all parts of society make the same decision, that’s fine.
But the progressives are clearly against that outcome. They want everyone to be coerced into respecting same-sex marriages, and indeed into participating in the ceremonies. We’ve already seen bakers threatened with ruinous fines, and we’ve even seen ministers threatened with arrest, for refusing to participate. As the Chief Justice’s dissent observed (p. 28), Obama’s Solicitor General has basically promised to try to revoke the tax exemption of churches that refuse to perform same-sex marriages.
So if there used to be some tension between libertarianism and constitutionalism, there won’t be any going forward.
What happens next? When it comes to social issues, most American opinion always sides against the side they see as the aggressor. Much of America has already decided who they see as the aggressor, but media is key for swinging the middle. Ordinarily, they paint the conservative side as the aggressor, and the progressive side as the victim. They were able to do that for same-sex marriage (“why not let these loving couples get married?”), but it will be much harder when it comes to punishing churches.
POSTSCRIPT: For a particularly bizarre instance of coercion, consider this: A same-sex couple asked a jeweler to make their custom-made wedding rings. The jeweler, who was personally opposed to same-sex marriage, nevertheless made them the rings. The couple were happy with the outcome. However, when they subsequently discovered that the jeweler opposed same-sex marriage, they demanded a refund! The jeweler, having done exactly the work requested of him, naturally refused to refund the money, but he eventually agreed after heavy pressure on online media was brought to bear. So what exactly is a jeweler supposed to do?
First, Obama decided to ignore the law and admit illegal immigrants by executive order. Second, when a federal judge was examining the order, the Obama administration lied to the judge:
At issue is whether the DOJ misled the judge into believing that a plank of the Obama program — giving deportation reprieves to thousands of young illegal immigrants brought to the U.S. as children — would not go forward before he made a ruling on a request to halt it. In fact, federal officials had given more than 108,000 people three-year reprieves before that date and granted them work permits under the program.
So I guess we shouldn’t really be surprised that, third, the Obama administration kept doing their thing even once the (angry) judge ordered them to stop:
The government “erroneously” doled out about 2,000 expanded immigrant work permit authorizations under President Obama’s controversial executive actions, even after a federal judge blocked the move, the Justice Department says.
“The Government sincerely regrets these circumstances and is taking immediate steps to remedy these erroneous three-year terms,” the Department of Justice wrote in a court advisory filed late Thursday in the Southern District of Texas.
The advisory comes after District Court Judge Andrew Hanen halted the implementation of the executive actions, which defer deportations for immigrants living in the U.S. illegally and provide them with expanded access to work permits, until the courts could decide whether the policies are constitutional.
The Obama administration has nothing but contempt, not only for Congress, but also for the courts. That is, he has nothing but contempt for any branch of the US government other than his own. The Constitution envisions our government as a three-legged stool, but Barack Obama sees it as a pogo stick.
Last week, the IRS admitted that it shared taxpayers’ private information with the White House. The degree to which it did so isn’t known (by us), but it was to the tune of thousands of documents, so it must have been substantial.
But, if the Obama administration has its way, we never will know, because they have reversed themselves and announced they will not comply with the very FOIA request that forced them to admit the documents exist.
In an impressive feat of chutzpah, they say that releasing the documents would be a privacy violation! They were perfectly happy to violate privacy when they shared the documents, but know that their malfeasance might become known, privacy is suddenly sacrosanct.
If they actually cared about privacy — setting aside that they wouldn’t have violated taxpayers’ privacy in the first place — they would release the documents in redacted form. This is done all the time. But the administration instead is trying to withhold them in their entirety. The only reason to do that is to hide their misdeeds.
The Washington Post reports:
The news was as welcome to the group of Prince George’s County pastors as a plague of locusts: Maryland’s controversial “stormwater remediation fee” applied to all property owners, including houses of worship. Depending on the acreage, churches faced a tax of hundreds, even thousands of dollars. . .
After months of negotiation with county environmental director Adam Ortiz, the pastors emerged with a rebate deal that will significantly cut the fees if churches adopt programs and equipment that will curb runoff, lessen pollution and help bolster the environment.
So far, about 30 churches have applied. Forestville [New Redeemer Baptist Church] was the first. They are planning to install rain barrels, build rain gardens, plant trees and, perhaps, replace their blacktop with permeable pavement. The government will cover most of the cost.
Fine. Sounds like a waste of money to me, but that’s Maryland.
But then there’s this:
Thomas and other pastors also have agreed to start “green” ministries to maintain the improvements at their churches, and to preach environmentally focused sermons to educate their congregations.
What?! This is flagrantly unconstitutional. The state cannot impose a tax on churches, and then waive the tax if the church preaches sermons to the state’s liking.
But you expect the government, particularly in Maryland, to try get to gain control over churches. Governments have always done that. (That’s how America got founded, if you recall.) But I’m disgusted with the church for agreeing to go along.
Ars Technica reports:
The Electronic Frontier Foundation has published a remarkable letter (PDF) this morning in which the Department of Justice admits its lawyer misled a panel of judges during oral arguments last month over the legality of National Security Letters, or NSLs.
To the surprise of some observers, during his rebuttal, Justice Department lawyer Douglas Letter told the three judges that recipients of NSLs could, in fact, speak about the letters in general terms. They could discuss the fact that they had received a letter and could engage in public debate about the “quality” of the NSLs they had received, he said.
But actually, they can’t. Letter’s statements contradicted longstanding policy, and EFF apparently asked the DOJ for clarification. The result is that DOJ has sent a note to the Clerk of Court for the 9th Circuit to correct the error, clearing up “an inadvertent misstatement by government counsel during the rebuttal portion of the argument.”
That’s how NYT op-ed writer Linda Greenhouse describes the outrage of the Supreme Court granting review of a lower court ruling:
This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect. When the court agreed to hear the first case, there actually was [post-hoc rationalization omitted] . . .
Not so this time. There is simply no way to describe what the court did last Friday as a neutral act. Now that the justices have blown their own cover. . .
I’m certain that Linda Greenhouse is aware that the Supreme Court can review any lower court ruling it chooses, and indeed it is its duty to do so. This idea that the Supreme Court can only review a ruling when there exists a circuit split is not only wrong, it’s just plain strange. In many of the left’s most celebrated cases (e.g., Brown v. Board of Education or Roe v. Wade.) there was no circuit split, nor even a ruling from the appeals court.
POSTSCRIPT: The main body of the piece is a plea to Chief Justice Roberts to rule for Obamacare again, which would be pathetic if it hadn’t already worked once. Having knuckled under once already, Roberts will face no end to pressure. We’ll see if he wilts again.
POST-POSTSCRIPT: By the way, a naked power grab is one party pushing through a far-sweeping bill they haven’t even read, with no votes from the opposition party, and making full use of every one of their tainted Senate seats (Franken (MN), Begich (AK), Kirk (MA), Specter (PA)), after the voters have already repudiated the bill.
The latest incident in the Obama administration’s war on due process:
In a federal probe of Princeton University, the Department of Education’s Office for Civil Rights faulted the Ivy League university for violating the federally recommended standard of proof for cases of rape and sexual assault.
- Treating the accused as innocent until proven guilty.
- Prohibiting double-jeopardy.
- Informing the accused of the charges against him.
- Allowing the accused to call witnesses.
- Allowing the accused to have legal representation.
So the Obama administration is pretty much against any kind of due process for the accused. But, incredibly, that’s not even the worst part of the story:
OCR also faulted Princeton for not finding men guilty in three cases.
Forget the procedures entirely. Princeton was supposed to find them guilty.
Remember when people suggested that having a constitutional law professor as president would mean greater respect for civil liberties?
The good news is the Washington Supreme Court has upheld the Constitutional principle of the presumption of innocence in rape cases. The bad news is it wasn’t unanimous. Three of nine justices were willing to increase the defendant’s burden from reasonable doubt to preponderance of the evidence.
For years liberals have proclaimed that the rights of the accused are sacrosanct. Better a hundred guilty men go free than one innocent man convicted. Clearly, many of them didn’t mean it.
The IRS says it has lost emails from five more workers who are part of congressional investigations into the treatment of conservative groups that applied for tax exempt status. . . The agency blamed computer crashes for the lost emails. In a statement, the IRS said it found no evidence that anyone deliberately destroyed evidence.
What we’re seeing here is confidence on the part of the IRS. They believe that they can do anything, and there will never be any consequences. Sadly, they’re probably right.
I’ve always wondered why Richard Nixon’s goons bothered to burglarize the Democratic party headquarters. Why didn’t he just open a phony investigation and seize the documents? That’s been accepted practice by Democrats going back at least to FDR, and it continues today:
Conservative targets of a Democrat-launched John Doe investigation have described the secret probe as a witch hunt. . .
Subpoenas also demanded the conservatives’ bank records, “emails from every major private email provider” and other information in what some have described as a mini-NSA (National Security Agency) operation in Wisconsin. . .
Chisholm, a Democrat, launched the dragnet two years ago, and, according to court documents, with the help of the state Government Accountability Board, the probe was expanded to five counties. The John Doe proceeding compelled scores of witnesses to testify, and a gag order compelled them to keep their mouths shut or face jail time. . .
Among other documents, prosecutors sought “all call detail records including incoming and outgoing calls,” “billing name and information,” “subscriber name and information including any application for service,” according to the conservatives’ court filing. . .
In one particularly dramatic demand, the prosecutors’ request for emails was unlimited: the subpoenas require “all information stored in an account including (but not limited to) incoming and outgoing mail.”
“Thus, a target’s mail from well before those dates could be seized if it was simply ‘stored’ in the account during the relevant period, including in the deleted items folder,” the plaintiffs’ court document states.
(Via Legal Insurrection.)
The state that doesn’t understand the difference between good guys and bad guys:
The same judge and prosecutor who let professional football star Ray Rice avoid a trial after beating his wife unconscious are pushing forward with the prosecution of Shaneen Allen, a single mother who carried a gun into New Jersey without realizing her Pennsylvania permit didn’t apply there.
What is wrong with these people?
The LightSquared debacle still isn’t quite over; the remains of the politically connected company are now suing the government over its denial of a permit to operate. Since I was strongly opposed to LightSquared’s effort to make money by breaking GPS, I thought I should note Richard Epstein’s contrary take.
Epstein is a very smart guy, so maybe there’s something to this, but I don’t see how to reconcile his position with the expert testimony on LightSquared’s scheme.
Justice Sonia Sotomayor (joined by Justices Ginsberg and Kagan), is upset with the rest of the rest of the Supreme Court:
Those who are bound by our decisions usually believe they can take us at our word. Not so today. . . That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.
The context of this bellyache is an injunction issued by the Supreme Court barring the enforcement of the Obama administration’s birth control mandate against Wheaton College. Myriad religious organizations, including Wheaton, complained that complying would violate their religious beliefs. The administration then responded with a bogus “accommodation”, wherein the organizations would file a form objecting to the mandate, at which point pretty much the same thing would happen: the health insurer would issue a separate policy just for birth control, and pass the cost on to the organization. The various religious organizations weren’t fooled by this legerdemain.
In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring [blah blah blah]. . . We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.
Thus, Sotomayor, et al. complain, the majority already approved the “accommodation” and are now going back on it. But they are not.
Under the RFRA, the government cannot burden religious freedom unless it is the least restrictive means to accomplish a compelling state interest. Nothing here says that the accommodation is the least restrictive means. To the contrary, it says only that the accommodation is a less restrictive means than the mandate that the administration sought to impose on Hobby Lobby, and therefore the mandate cannot be the least restrictive means. (ASIDE: The majority opinion also never found that free birth control was a compelling state interest, either.)
It’s sad that three Supreme Court justices don’t understand the basic logical distinction between “less” and “least”.
TANGENTIAL POSTSCRIPT: However, if you want an example of the Supreme Court going back on its word, there’s New Haven v. Briscoe from 2012. In that case, Supreme Court waffling left the hapless city of New Haven with no way to follow the law. In 2009, the city set aside the results of a firefighters test because no black applicants passed the test and they were afraid of a discrimination lawsuit on the basis of disparate impact (the theory wherein you can find racial discrimination based purely on numbers, without any evidence of actual discriminatory policy or conduct). The Supreme Court said they were wrong to set aside the test, adding:
If, after it certifies the results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate–treatment liability.
This certainly sounds like the Court saying that New Haven was safe from a disparate impact suit. But when such a such a suit duly appeared, the lower court found for the plaintiff, and the Supreme Court wouldn’t even grant cert. The city, quite literally, was sued successfully for obeying the Supreme Court.
Strangely, I don’t remember a strongly worded dissent in that case.
A White House panel appointed to approve President Obama’s domestic spying program has approved President Obama’s domestic spying program.
White House will consider whether president can act on his own to mitigate effect of Supreme Court contraception ruling
The Supreme Court has ruled 5-4 in favor of Hobby Lobby (and two other companies), ordering that HHS cannot force their owners to violate their religious beliefs and pay for abortifacients. The opinion is here.
The key argument made by the administration in defense of its policy is that the Religious Freedom Restoration Act doesn’t apply to companies (even closely held companies), because corporations aren’t real people and can’t exercise religion. This is the same argument that they use to attack the free-speech rights of companies.
The Supreme Court majority, in the Citizens United case, rebutted this, pointing out that corporations are simply groups of people who choose to organize their efforts using a certain legal mechanism. It’s those people whose rights were implicated in Citizens United, and in Hobby Lobby. The Supreme Court reiterates their argument here:
As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.
In holding that Conestoga, as a “secular, for-profit corporation,” lacks RFRA protection, the Third Circuit wrote as follows:
“General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” 724 F. 3d, at 385 (emphasis added).
All of this is true—but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.
The left railed against Citizens United for “making corporations into people,” and will doubtless do so here as well. But a moment’s consideration shows that exactly the opposite is true. Treating corporations as people is a “legal fiction” that serves to protect the rights of actual human beings. In contrast, the left believes that corporations really are actual entities (they would probably avoid using the word “people”), but ones without any rights:
HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies. . .
ASIDE: The dissent, apparently recognizing that terminating all civil rights for corporations might be bad, claim to limit the application of their principle to for-profit companies. The justify their entirely new carve-out by some sophistry (for-profit corporations, they claim, have no purpose whatsoever other than to turn a profit), but it’s hard to believe they are really in earnest. Their new rule against for-profit corporations wouldn’t last long once a for-profit corporation they like (say, the New York Times) was in the dock.
But, to make it crystal clear where they stand, the dissent also explains that, even if the rights of real human beings were implicated, the government would be free to trample those rights:
Accommodations to religious beliefs or observances, the Court has clarified, must not significantly impinge on the interests of third parties.
The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.
This argument, which the dissent adopts from HHS, claims that accommodating Hobby Lobby’s owners’ religion would impinge on the interests of third parties. That’s true, in a sense. Yes, it would impinge on third-party interests that they HHS’s own policy created! If this were to stand, it would provide a blueprint for neutering any religious freedom claim: simply create a third-party interest against the religious practice, and then observe that accommodating religious would make it go away again.
This did not escape the notice of the majority, who observed:
In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals.
To summarize, the left’s position now is that (1) corporations are people exactly enough to stand clear of their owner’s right, but not enough to have rights of their own, and (2) the government can burden religion, so long as in so doing it creates some third-party who benefits from the burden.
UPDATE: An interesting analysis from Mark Rienzi. It includes this observation:
It was well-established that corporations could exercise religion, and that profit-making ventures could also exercise religion. And as the Court pointed out today, the various opinions in Gallagher v. Crown Kosher Markets made it hard to conclude that putting the two together eliminated the ability to engage in religious exercise in the sense of the First Amendment and RFRA. But Hobby Lobby now establishes the point beyond any doubt.
Put that way, it sounds pretty obvious. Unless your school of jurisprudence is entirely ends-directed.
UPDATE: A lot of people on the left are attacking Hobby Lobby (the company), rather than Hobby Lobby (the legal opinion). I think those people are missing the point; what’s important here is the law as it pertains to religious freedom, not Hobby Lobby’s particular choices. But, for what it’s worth, this article addresses every attack against Hobby Lobby I’ve seen, as well as reiterate some of the key legal points.
The Obama administration, yet again, is taking steps to defend election fraud:
Justice Department lawyer Bradley Heard was in court today trying to stop Kansas from ensuring that only citizens register to vote. Kansas Secretary of State Kris Kobach, relying on a United States Supreme Court opinion of last year, asked the federal Election Assistance Commission to permit him to ensure that only citizens were registering to vote.
The Obama administration has been utterly consistent on this issue. They are always against any measures to protect the integrity of elections. It doesn’t take a lot of imagination to draw an inference from that.
Perjury is so common from this administration it hardly even seems notable any more. But let’s note it anyway:
After seven years of litigation, two trips to a federal appeals court and $3.8 million worth of lawyer time, the public has finally learned why a wheelchair-bound Stanford University scholar was cuffed, detained and denied a flight from San Francisco to Hawaii: FBI human error. FBI agent Kevin Kelley . . . checked the wrong box on a terrorism form, erroneously placing Rahinah Ibrahim on the no-fly list. . .
Instead of admitting to the error, high-ranking President Barack Obama administration officials spent years covering it up. Attorney General Eric Holder, Director of National Intelligence James Clapper, and a litany of other government officials claimed repeatedly that disclosing the reason Ibrahim was detained, or even acknowledging that she’d been placed on a watch list, would cause serious damage to the U.S. national security. . .
Holder went so far as to tell the judge presiding over the case that this assertion of the state secrets privilege was fully in keeping with Obama’s much-ballyhooed 2009 executive branch reforms of the privilege, which stated the administration would invoke state secrets sparingly. . . In his declaration, Holder assured Judge Alsup that the government would not be claiming national security to conceal “administrative error” or to “prevent embarrassment” — an assertion that is now nearly impossible to square with the facts.
If your gun stunt pleases the powers-that-be, you can break the law. Witness David Gregory. But, if your gun stunt angers the powers-that-be, you go to jail for four months and then serve two years probation.
Without uniform enforcement, the law is merely a tool for the harassment of those who are out of favor. We need the rule of law.
Fox News reports:
The parents of a 6-year-old girl said their daughter was humiliated when a teacher interrupted the child’s one-minute speech and told her to sit down because she’s “not allowed to talk about the Bible in school,” attorneys for the California family allege.
It’s worse than that. She was supposed to give a presentation on a family Christmas tradition! Then the teacher was shocked and dismayed that one student’s tradition actually had something to do with Christmas.
In fact, it’s worse still: this isn’t the school district’s first offense:
It’s not the first time the school district has found itself in hot water over religious liberty violations. Last October, a seventh grade student was publicly ridiculed by a teacher for reading the Bible. The classroom assignment had been to read a non-fiction book. The teacher told the student in front of the class that the Bible was fiction and refused to give him credit for the assignment.
A big win for free speech in the Ninth Circuit, which has found that First Amendment protection is not limited to members of the institutional press.
In fact, while striking down the pernicious aspects of the FCC regulation, it leaves in place the regulation’s requirement that ISPs disclose what they are doing, so this seems like the best possible result. Perhaps Google (on whose behalf the administration was acting) will adopt a constructive, market-oriented approach (like this one) instead of rent-seeking now.
So, they’re not even going to pretend to have a non-partisan investigation of the IRS scandal:
The Justice Department selected an avowed political supporter of President Obama to lead the criminal probe into the IRS targeting of tea party groups, according to top Republicans who said Wednesday that the move has ruined the entire investigation.
House Oversight and Government Reform Committee Chairman Darrell E. Issa, California Republican, and regulatory affairs subcommittee Chairman Jim Jordan, Ohio Republican, said they have discovered that the head of the investigation is Barbara Kay Bosserman, a trial lawyer in the Justice Department who donated more than $6,000 to Mr. Obama’s 2008 and 2012 campaigns, as well as several hundred dollars to the national Democratic Party.
The Justice Department says it wasn’t allowed to prefer someone else who wanted a big Democratic supporter:
But the Justice Department said it isn’t allowed to consider a career lawyer’s political leanings when doling out assignments and that it would violate an employee’s constitutional rights if he were penalized on the job for making legal political contributions.
“It is contrary to department policy and a prohibited personnel practice under federal law to consider the political affiliation of career employees or other non-merit factors in making personnel decisions,” said spokeswoman Dena Iverson.
Frankly, even if that is the rule (I’ll take their word for it), I imagine that the Justice Department has some latitude in picking appropriate people for assignments. (For example, you don’t infiltrate Middle Eastern terrorist cells with Europeans, even if the rules prohibit considering race in assignment.)
But never mind all that, because it’s nonsense. The Obama/Holder Justice Department considers political affiliation in personnel decisions all the time. Indeed, it appears to be their primary consideration. For example, every single one of the people hired by the Civil Rights division was a leftist. No conservatives, no moderates. 113-0-0.
Now they’re going to pretend that they are so punctilious about ignoring politics that they couldn’t possibly choose an appropriate investigator? That doesn’t even pass the laugh test.
Lynne Stewart, the lawyer who facilitated terrorist communications with Sheikh Omar Abdel Rahman, has been released by the Obama administration.
The Obama administration has announced that it will weaken the HIPAA rules that protect the privacy of individuals’ health records. They wants government bureaucrats to have access to mental health records so they can use them to deny patients permission to purchase firearms.
They claim that they will find a way to do this without compromising patients’ privacy, but it’s not true. Firstly, it’s not true because it’s impossible: the whole point is to give health information to government bureaucrats. Secondly, we know from experience that when it comes to gun-related records, the government will leak the information:
In 2003, under pressure from the gun lobby, Congress passed a law that hid from public view the government database that contained the gun tracing information.
The Washington Post has obtained the names of the gun dealers nationwide with the most traces over the past four years. In addition, The Post has uncovered the names of the dealers, all from border states, with the most traces from guns recovered in Mexico over the past two years.
It was illegal for the government to disclose the information, but they did it anyway. And this wasn’t just a few “bad apples”, either. There was never any investigation of the leak, so DOJ policy-setting officials were complicit, at least after the fact.
In the same decision that struck down New York’s astonishingly stupid and pointless law banning more than seven rounds in a magazine, the federal judge also struck down three provisions as unconstitutionally vague:
- A ban on “muzzle breaks”. (There is no such thing. The state contends that the law was supposed to say “muzzle brakes”, which actually exist. But we-meant-to-say-X-instead-of-Y is not an accepted principle of statutory construction.)
- A grammatically unintelligible provision limiting “large capacity” (i.e., normal capacity) magazines.
- A ban on “semiautomatic version[s] of an automatic rifle, shotgun or firearm”. (The bill offers no rules to determine what firearm is or is not a “version” of another, leaving ordinary people with no way to obey the law, and encouraging “arbitrary and discriminatory enforcement” — which may well have been the point.)
One thing this does make clear (particularly the first and third) is that the people who wrote the bill had no idea what they were talking about.
The New York Times (writing on Justice Sotomayor’s “perplexing” decision that people are better equipped to judge what is a burden to their religion than the New York Times) also has this to say about the Hobby Lobby case:
In November, the Supreme Court agreed to hear two challenges to the birth control mandate brought by secular, profit-making companies seeking to elevate the religious views of company owners over societal interests and the well-being of employees.
This makes clear what the NYT thinks of the matter, but really, how is this different from any freedom of religion case? Isn’t freedom of religion always about elevating religious freedom over the supposed societal interests that would be served by suppressing it?
From this, it’s not hard to infer the NYT’s opinion of religious freedom in general.
When New York State passed its execrable gun law, limiting the number of bullets that may be loaded into a magazine, I wrote:
I defy anyone to name any constructive purpose served by such a rule. If you were to ban 10-round magazines outright, one might imagine — following the usual pattern of gun-controllists’ wishful thinking — that it would make them a little harder for criminals to obtain. But allowing the magazines eliminates even that highly-unlikely salutary purpose.
The sole consequence of this rule will be that law-abiding persons will have seven rounds, while having no effect on criminals whatsoever.
In other words, this law is not about stopping criminals, but about disarming innocents.
Now a federal court has ruled pretty much exactly that:
It stretches the bounds of this Court’s deference to the predictive judgments of the legislature to suppose that those intent on doing harm (whom, of course, the Act is aimed to stop) will load their weapon with only the permitted seven rounds. In this sense, the provision is not “substantially related” to the important government interest in public safety and crime prevention. . .
This Court has ruled that New York is entitled to regulate assault weapons and large-capacity magazines under the principal presumption that the law will reduce their prevalence and accessability in New York State, and thus, inversely, increase public safety. The ban on the number of rounds a gun owner is permitted to load into his 10-round magazine, however, will obviously have no such effect because 10-round magazines remain legal. As described above, the seven-round limit thus carries a much stronger possibility of disproportionately affecting law-abiding citizens.
UPDATE: Andrew Branca points out that the law was even worse than I thought. He points out that merely complying with the law is no protection, if an arresting officer miscounts the bullets in your magazine (inadvertently or not). The only way to protect yourself would be to use a magazine that could not be loaded with more than seven rounds, and for the most part those don’t exist. So among people who don’t trust New York police to treat gun owners fairly (which should be everyone) it’s a de facto ban on most semi-automatic pistols.
Cases like Hobby Lobby are difficult, since they raise the question of whether people have any right to practice their religion in the conduct of their business. (The answer certainly ought to be yes, but will it?) But cases like these, involving religious organizations, should be no-brainers. There’s no earthly way the HHS mandate can stand up under the Religious Freedom Restoration Act.
Remember the how the FBI was going to investigate the IRS’s harassment of conservative groups?
Attorney General Eric Holder said on Tuesday that he had ordered an FBI investigation to determine whether the Internal Revenue Service broke any laws when it targeted conservative groups for closer scrutiny of their tax-exempt status.
It turns out, the investigation never happened:
The Justice Department acknowledged the impropriety of what the IRS had done and promised a thorough FBI investigation.
It never happened. Last month, an attorney working for 41 of the targeted nonprofit groups said no one at any of the groups had ever been interviewed by federal investigators.
Last week, the Justice Department and the FBI refused requests from the House Oversight and Government Reform Committee to provide information on its investigation. FBI officials also canceled a previously scheduled meeting with committee members.
The Obama administration seems to be abandoning its effort to institute unconstitutional speech codes throughout higher education:
The federal government is backing away from the nationwide “blueprint” for campus speech restrictions issued this May by the Departments of Education and Justice. The agencies’ settlement with the University of Montana sought to impose new, unconstitutional speech restrictions, due process abuses, and an overbroad definition of sexual harassment and proclaimed the agreement to be “a blueprint for colleges and universities throughout the country.”
But in a letter sent last week to the Foundation for Individual Rights in Education (FIRE), the new head of the Department of Education’s Office for Civil Rights (OCR), Catherine Lhamon, said that “the agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy.”
“Assistant Secretary Lhamon’s clear statement that the Montana agreement does not represent OCR or DOJ policy—meaning it’s not much of a ‘blueprint’—should come as a great relief to those who care about free speech and due process on our nation’s campuses,” said FIRE President Greg Lukianoff. “Colleges have been bewildered trying to reconcile their obligations under the First Amendment with the requirements of the ‘blueprint’—essentially an impossible task. OCR and DOJ now need to directly inform our nation’s colleges and universities that they need no longer face that dilemma.”
We noted this stunning attack on free speech in higher education last May. Unfortunately, the administration never relented in its attack on due process in higher education, and most universities have implemented the policy by now. (Mine has.) All this from the president who once taught Constitutional law.
Still, take your good news where you can find it. And congratulations to FIRE. It’s hard to see this happening without them.
The Obama administration is illegally using DOD communication systems for political communications.
The EPA is extending its authority over streams and wetlands:
Two Republican lawmakers on the House Science Committee are accusing the Environmental Protection Agency of pushing through a rule that could potentially expand the agency’s regulatory authority over streams, wetlands and other bodies under the Clean Water Act.
Reps. Lamar Smith, R-Texas, and Chris Stewart, R-Utah, on Friday sent a letter to EPA Administrator Gina McCarthy expressing concern over the proposed draft rule, which they say would give the agency “unprecedented control over private property across the nation.”
Unfortunately, the article doesn’t give enough detail really to understand what the EPA is doing, but based on the EPA’s recent record, it’s safe to assume it’s outrageous.
But what horrifies me, yet again, is not the detail of the EPA’s action, but the whole notion of it. The EPA is unilaterally extending its own authority, and the only check on its ability to do so is an impotent public comment period. A government agency is granting itself new powers, and the legislative branch has nothing to do with it. No, worse than that, the legislative branch is powerless to stop it
The rule of law in America has truly gone off the rails.
How Dianne Feinstein got a bunch of illegal weapons for her anti-gun press conference. Yes, there was a cover-up.
Yet another Bush-era War on Terror policy that Obama pretended to abhor before adopting himself:
Instead of sending suspected terrorists to Guantanamo Bay or secret CIA “black” sites for interrogation, the Obama administration is questioning terrorists for as long as it takes aboard US naval vessels. . . Questioning suspected terrorists aboard US warships in international waters is President Barack Obama’s answer to the Bush administration detention policies that candidate Obama promised to end. . .
By holding people in secret prisons, known as black sites, the CIA was able to question them over long periods, using the harshest interrogation tactics, without giving them access to lawyers. Obama came to office without a ready replacement for those secret prisons. . . With the black sites closed and Obama refusing to send more people to the US detention facility at Guantanamo Bay, Cuba, it wasn’t obvious where the US would hold people for interrogation.
And that’s where the warships came in.
I’m sure the Obama administration would say that questioning terrorists on ships is completely different than doing it on land. They would probably even say it with a straight face. They’re good at that.
Ace asks a really good question:
- I know the media doesn’t ask Obvious Questions but can the we see the Office of WH Council’s memorandum that this [shutdown theater] is legally required?
- If not, why not? No administration has believed it was legally required to boot people out of their leased homes before.
- May citizens actually view the work-product that we paid for? That lawyers in the government claim this is now necessary?
- I doubt such a memo exists at all. But if it does, I’d like to see how they came to the opposite conclusions of every other president.
- Where is the legal opinion claiming they suddenly are 1) legally required to do this and 2) have the legal power to do this?
The Washington Post reports that the Obama administration weakened the rules governing the NSA, greatly extending the NSA’s ability to spy on Americans:
The Obama administration secretly won permission from a surveillance court in 2011 to reverse restrictions on the National Security Agency’s use of intercepted phone calls and e-mails, permitting the agency to search deliberately for Americans’ communications in its massive databases, according to interviews with government officials and recently declassified material.
In addition, the court extended the length of time that the NSA is allowed to retain intercepted U.S. communications from five years to six years — and more under special circumstances, according to the documents, which include a recently released 2011 opinion by U.S. District Judge John D. Bates, then chief judge of the Foreign Intelligence Surveillance Court.
What had not been previously acknowledged is that the court in 2008 imposed an explicit ban — at the government’s request — on those kinds of searches, that officials in 2011 got the court to lift the bar and that the search authority has been used.
Together the permission to search and to keep data longer expanded the NSA’s authority in significant ways without public debate or any specific authority from Congress.
There is a persistent mythology that the Democrats are somehow the party of civil liberties. It’s quite bizarre that the party of Wilson, Franklin Roosevelt, and now Obama could develop such a reputation. As this story shows, it is the Bush administration — undeservedly vilified for its surveillance for foreign terrorists — that carefully balanced national security with privacy.
The Bush administration went to court in 2008 to request that the court limit NSA surveillance of Americans. The Obama administration went to court in 2011 to get those limits removed. Right there is all you need to know about how the NSA scandal happened.
The Obama administration’s “dense pack” of scandals, together with my busy schedule of late, has kept me from keeping up-to-date on the NSA scandal. I’ve been meaning to comment on all of these, but I think it’s time just to dump all the links:
- The NSA keeps everything it collects for some time, whether it is foreign or domestic. Also, they are permitted to listen to your calls to find out whether they are permitted to listen to your calls. (Link)
- Thus, when Obama said “no one is listening to your calls,” that was a lie. (Link)
- The NSA’s program may well be illegal. (Link)
- The NSA broke privacy rules thousands of times per year. (Link)
- The NSA “accidentally” collected telephone call data on the entire 202 area code (Washington, DC), and then decided that it need not report the error to its oversight staff. (Link)
- The chief on the FISA court admits that he does not have the means to police the NSA’s actions, and he has to assume they are telling him the truth. (Link)
- Nevertheless, the FISA court did rule that the NSA broke the law in collecting communications of innocent Americans from 2008 to 2011. The opinion also reprimanded the NSA for a “substantial misrepresentation” of its activities. (Link)
- The White House tried to interfere with the Washington Post’s reporting on the NSA. (Link)
- The NSA doesn’t have any idea how much damage Snowden did, and because it doesn’t audit its employees activities (surveillance is for us, not them!) they have no way to find out. (Link)
- The NSA review panel consists of four insiders. (Link)
- Of the 18 thousand domestic telephone numbers the NSA monitored, just 11% met the necessary legal standard to be monitored. (Link)
- NSA employees use the NSA’s surveillance powers to spy on love interests so often, they have a term for it: LOVEINT. (A play on intelligence terms such as HUMINT and SIGINT.) (Link)
- No one has ever been prosecuted for LOVEINT. (Link)
I’ll save one more for the next post.
Fox News reports:
The ATF agent who blew the whistle on Operation Fast and Furious has been denied permission to write a book on the botched anti-gun trafficking sting “because it would have a negative impact on morale,” according to the very agency responsible for the scandal.
After first trying to stop the operation internally, ATF Agent John Dodson went to Congress and eventually the media following the death of Border Patrol Agent Brian Terry in December 2010. Two guns found at the murder scene were sold through the ATF operation.
It’s not the fact that they trafficked weapons to Mexican drug cartels and made no effort to track them that hurts morale, it would be the book.
POSTSCRIPT: Dodson is the same agent that the Department of Justice and the US Attorney conspired to smear, according to the DOJ Inspector General.
The IRS has not yet destroyed lists of donors to non-profits that it compiled illegally and pledged to destroy.
In a ruling Monday night, U.S. District Court Judge Amy Berman Jackson turned down the Justice Department’s request to dismiss a lawsuit brought by the House Oversight and Government Reform Committee after President Barack Obama asserted executive privilege to prevent some records about the administration’s response to the “Operation Fast and Furious” gunrunning scandal from being turned over to Congress.
“This case presents the sort of question that the courts are traditionally called upon to resolve,” Jackson said in her 44-page decision, issued more than five months after lawyers argued the issue in her packed courtroom and more than a year after the House committee filed suit. “Dismissing the case without hearing it would in effect place the court’s finger on the scale, designating the executive as the victor based solely on his untested assertion that the privilege applies,” she wrote.
The decision does not immediately grant Congress access to the documents; it merely means that the administration must now defend it’s claim of executive privilege in court. Put another way: the Obama administration’s position was not just that it can cast executive privilege over any document it likes (presidential or not), but that the courts have no power to review that decision. It was as astonishingly broad claim of authority, so the only surprise is it took so long to issue a decision.
Moreover, the House of Representatives is likely to prevail on the merits as well, as John Hinderaker explains.
Two seventh-grade boys in Virginia have been suspended from school for a year, for playing with an airsoft gun at home, outside of school hours. It is very important that the families sue the school district — anti-gun educrats can’t be allowed to think they can get away with this crap.
UPDATE: There is an important detail that was not initially reported. The kids were not just shooting targets in their own yard with the airsoft gun; they were also shooting bystanders. That obviously changes the entire matter. It’s not a harmless behavior on private property; it’s simple assault.
I suppose the case could be made that school should not have taken action because the incident didn’t involve the school, but I don’t think I agree. In any case, the kids are much better off with it with it being a school matter than a criminal justice matter, which is the other alternative.
A new facet of the IRS scandal comes to light:
In May, the IRS acknowledged subjecting conservative groups to intrusive scrutiny and delaying applications for far too long before approving them. Some applications are still awaiting approval after three years.
The newly revealed surveillance, however, applied to applications that had been approved, but where the IRS apparently wanted to determine whether the groups strayed too far into political activity to keep their tax-exempt status.
Mr. Werfel quibbled with calling the continued “surveillance” and said he didn’t see any evidence that groups on the list for scrutiny was improperly influenced by any IRS employees.
But he said the program was troubling enough that he shut it down two weeks ago.
This was going on two weeks ago!
If there’s nothing to the Benghazi scandal, why is the CIA disciplining employees who won’t sign an agreement not to talk to Congress, and conducting polygraphs to make sure that no one is talking to Congress?
CIA director John Brennan denies all of it, but he’s learned from Eric Holder and James Clapper that there are no consequences for lying to Congress.
The FBI admits that it distributed malware in order to break the anonymity of the Tor network. For a private citizen this would be a crime, but the government can do whatever it feels like.
The NSA tried (and temporarily succeeded) in having this t-shirt banned:
Not only is the design clearly protected speech under the First Amendment, the law that the NSA was trying to use doesn’t even apply.
This is why you don’t give up your national sovereignty:
A triple murderer is appealing to the European Court of Human Rights to challenge his “life means life” sentence, the first Briton to do so. . .
It comes after three killers including Jeremy Bamber, who shot dead five members of his family, lodged a case with the court in Strasbourg which prompted it last month to rule it was “inhuman and degrading” for prisoners to face death in jail without the possibility of review.
Despite the scandal, the IRS is brazenly continuing to harass the Tea Party:
An IRS letter sent to the group last week and obtained by The Washington Times contains a laundry list of requests related to virtually all the group’s activities, including its involvement in the 2012 election cycle and its get-out-the-vote efforts, fundraising activities, all radio and TV advertising, and other information. The IRS also is asking for detailed financial records, including “the amounts and percentages of your total expenses that were for fundraising activities in the tax year 2011, 2012 and 2013.”
The Aug. 20 request came as a shock to Tea Party Patriots, which said it already has provided to the IRS extensive information on all of its activities and thinks it is long past time to receive a “yes” or “no” answer.
The letter also is proof that, while President Obama and other liberals have referred to the situation as a “phony scandal,” conservative organizations still are targets, said Cleta Mitchell, a Washington, D.C., lawyer representing the Tea Party Patriots and several other conservative groups.
The Daily Caller reports:
IRS chief counsel William Wilkins, who was named in House Oversight testimony by retiring IRS agent Carter Hull as one of his supervisors in the improper targeting of conservative groups, met with Obama in the Roosevelt Room of the White House on April 23, 2012. Wilkins’ boss, then-IRS commissioner Douglas Shulman, visited the Eisenhower Executive Office Building on April 24, 2012, according to White House visitor logs.
On April 25, 2012, Wilkins’ office sent the exempt organizations determinations unit “additional comments on the draft guidance” for approving or denying tea party tax-exempt applications, according to the IRS inspector general’s report.
In a potentially important case, a federal appeals court has ruled that the First Amendment does not give labor unions the right to engage in a pattern of bad-faith litigation:
The case is Waugh Chapel South, LLC v. United Food and Commercial Workers. In it, the developer of a shopping center whose tenants included a Wegmans, a non-union grocery store, was sued 14 times by UFCW. Most of the cases involved challenges to permitting decisions and were dismissed or rendered moot. In one instance, the case was withdrawn after the developer subpoenaed the union’s financial records.
Waugh Chapel South alleged the cases reflected a pattern of harassment. In their complaint, the company said a union official promised to “fight every project you develop where Wegmans is a tenant.” UFCW countered that it had a First Amendment to make such complaints right under a 1965 Supreme Court case, United Mine Workers v. Pennington.
A three- judge panel rejected that argument. “In light of the poor litigation record and the signs of bad-faith petitioning, a factfinder could reasonably conclude that the unions have abused their right to petition the courts and, as a result, have forfeited the protection of the First Amendment,” they wrote.
Remember the LightSquared affair? That was the telecom startup owned by Philip Falcone, a major Democratic donor who tried to parley his political connections into profit by getting the FCC to allow him to build a wireless service on top of a spectrum used by GPS and plane avionics. After the White House’s corrupt intervention on his behalf came public, the effort collapsed and the company went bankrupt.
Falcone has admitted bilking clients of his hedge fund of hundreds of millions of dollars. He has been banned from trading for five years and ordered to pay millions in restitution.
A federal court has ruled that circumventing an IP-address-ban by changing your IP address is criminal. Not even changing your MAC address, mind you, which at least typically is specific to a computer, but your IP address, which isn’t specific to anything or anyone.
This is complete foolishness, and indicates that (a) the judge doesn’t understand how the internet works, and (b) the Computer Fraud and Abuse Act, insofar as it lends itself to nonsensical decisions, is much too vague.
The Wall Street Journal reports:
The White House was given advance notice of the British government’s plans to detain the partner of the Guardian reporter who has written a series of high-profile stories about U.S. surveillance practices, a spokesman said Monday.
In the daily White House briefing, spokesman Josh Earnest declined to condemn the detainment and didn’t directly answer questions about whether U.S. officials expressed any concern to their British counterparts about the U.K.’s plans. . .
David Miranda, the partner of Guardian reporter Glenn Greenwald, was held Sunday at London’s Heathrow airport for nine hours. Authorities said he was detained under a U.K. terrorism law, and they confiscated a number of his electronics, including a cellphone and laptop.
Presumably the White House wouldn’t answer whether they expressed concern because they haven’t decided yet.
The Obama administration asks the Supreme Court to allow searches cell phones without a warrant.
Remember, this is the same president who, as a senator, condemned the practice of recording the phone calls of foreign terrorists without a warrant.
The DC appeals court says the president is not above the law:
“The president may not decline to follow a statutory mandate or prohibition simply because of policy objections,” Judge Brett M. Kavanaugh wrote in a majority opinion, which was joined Judge A. Raymond Randolph. Chief Judge Merrick B. Garland dissented.
A victory for sanity and a defeat for the Obama administration:
A [federal court in Maryland] has dismissed a lawsuit against an events-services company accused by the Equal Employment Opportunity Commission of discriminatory hiring practices, a setback for a federal agency that increasingly argues the use of credit reports and criminal background checks can disproportionately impact minorities.
Yes, the administration really was arguing that it should be illegal for employers to prefer law-abiding persons over criminals.
UPDATE (9/3): More here on the shoddy research the administration tried to put forward:
The meat of the ruling, however, is the court’s blistering takedown of the government’s “expert” report, authored by an outside statistician who attempted to establish that Freeman’s criminal-background checks disproportionately harmed black job-seekers. Judge Titus described the report as “an egregious example of scientific dishonesty,” its analysis “laughable,” “skewed” and full of “cherry-picked data.” He concluded that the “mind-boggling-number of errors” rendered the EEOC’s “disparate impact conclusions worthless.”
In fact, the truth appears to be quite the opposite:
An October 2006 study in the Journal of Law and Economics, “Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers,” found that “employers that check criminal backgrounds are in general more likely to hire African Americans,” according to Harry Holzer of Georgetown University and his two co-authors. “[T]he adverse consequence of employer-initiated background checks on the likelihood of hiring African Americans is more than offset by the positive effect of eliminating statistical discrimination.” These researchers surmise that employers who can screen for prison records are less likely to rely on prejudice when hiring.
The saga of Lavabit founder Ladar Levison is getting even more ridiculous, as he explains that the government has threatened him with criminal charges for his decision to shut down the business, rather than agree to some mysterious court order. The feds are apparently arguing that the act of shutting down the business, itself, was a violation of the order . . .
Levison stressed that he has complied with “upwards of two dozen court orders” for information in the past that were targeted at “specific users” and that “I never had a problem with that.” But without disclosing details, he suggested that the order he received more recently was markedly different, requiring him to cooperate in broadly based surveillance that would scoop up information about all the users of his service.
Nakoula Basseley Nakoula has been released from prison. Nakoula spent a year in prison after having been scapegoated for responsibility for the Benghazi attack on the basis of a film he made attacking Islam.
Some will claim that Nakoula was jailed for probation violations, not for making the film. It’s been a year, so let’s debunk that yet again:
- Nakoula committed minor probation violations that no one would have cared about had he not been chosen as the scapegoat for Benghazi.
- The only reason those probation violations even came to light is because the federal government investigated the film looking for a scapegoat.
- Hillary Clinton pledged that the maker of the film would be arrested and prosecuted. This was before his identity or probation status were known.
The Washington Free Beacon reports:
The Environmental Protection Agency may have intentionally skirted public disclosure requirements under the Freedom of Information Act, a federal judge ruled Thursday. . .
“The possibility that unsearched personal email accounts may have been used for official business raises the possibility that leaders in the EPA may have purposefully attempted to skirt disclosure under the FOIA,” Lambert wrote. “The possibility that the agency purposefully excluded the top leaders of the EPA from the search, at least initially, suggests an unreasonable and bad faith reading of Landmark’s FOIA request and subsequent agreement to narrow its scope.”
Lambert also said the EPA’s statements concerning its search for records were incomplete and “contain numerous inconsistencies and reversals which undermine confidence in their truthfulness.”
The Washington Post reports:
A white paper released by the White House on Friday argues that Congress knew exactly what it was approving [viz a viz NSA collection of telephone records] when it reauthorized the Patriot Act in 2011.
“Information concerning the use of Section 215 to . . . collect telephony metadata in bulk was made available to all Members of Congress,” the paper says. “Congress reauthorized Section 215 without change after this information was provided.”
But a leading administration critic has disputed that claim. Rep. Justin Amash (R-Mich.) said he never saw a 2011 letter to Congress disclosing the existence of the phone records program. And neither did dozens of his colleagues.
The Justice Department sent the letter to the top Republican and the top Democrat on the House Permanent Select Committee on Intelligence. . . But in a Sunday Facebook post, Amash charged that “the House Permanent Select Committee on Intelligence did NOT, in fact, make the 2011 document available to Representatives in Congress.”
If that isn’t true, it should be easy for the White House to refute.
GreenTech, the electric car company founded by Terry McAuliffe (Democratic candidate for governor of Virginia, and erstwhile chair of the Democratic party) is under investigation by the SEC. One of the charges is that GreenTech was offering a bogus investment vehicle that basically amounted to selling EB-5 visas, which can be converted to green cards.
How can a private company be selling green cards, you wonder? Apparently there is a provision in the immigration code whereby you can get an EB-5 visa for starting or investing in a business that creates jobs in “targeted employment areas.” (I’m sure there’s no cronyism in how those are chosen. . .) GreenTech (allegedly) was certifying people as EB-5 investors who weren’t really making any investment at all.
UPDATE: McAuliffe’s actual defense: “I was just the chairman.”
To investigate the NSA’s spying on Americans, President Obama appointed the Director of National Intelligence, James Clapper. Clapper, of course, is best known for heading the intelligence apparatus as its misconduct was ongoing, and for lying about it to Congress. More precisely, Clapper was directed to name the investigating panel’s members, who would then report to him.
Perhaps seeing how absurd it is for Clapper to head the investigation of himself, the White House has already reversed itself. (See update here.) They now say the White House will name the members, and the panel will not report to Clapper, both of which are changes from the original mandate:
By the authority vested in me as President by the Constitution and the laws of the United States of America, I am directing you to establish a Review Group on Intelligence and Communications Technologies … Within 60 days of its establishment, the Review Group will brief their interim findings to me through the Director of National Intelligence (DNI), and the Review Group will provide a final report and recommendations to me through the DNI no later than December 15, 2013.
Despite the Supreme Court’s decision throwing out Section 4 of the Voting Right Act (which covered jurisdictions based on the statistics of 50 years ago, rather than today), Eric Holder says he’s going to demand that the formerly covered jurisdictions such as Texas continue to comply.
Good luck with that.
The IRS says that you can’t be tax exempt and push your religion, or at least that is what IRS agents are telling pro-life tax-exempt applicants. The conversation doesn’t pullquote very easily, mainly due to the incoherence of the agent, but looking at it as a whole, the message is quite clear:
Yeah, you have the religious freedom; the freedom of speech. And other people also have the civil rights; human rights. You cannot, you know, use your religious belief to tell other people you don’t have a belief, so I don’t believe you need the right to do this, start confrontation, protesting, uh, prot, uh, protest. [unintelligible] You don’t apply for tax exemption. . .
When you come to apply for tax exemption, you have to keep your action to, you know, exactly what is
educational or religious . . . You have no right to, against, other people’s beliefs. . .
You can’t take all kinds of confrontation activities and also put something on a website and ask people to take action against the abortion clinic. That’s not, that’s not really educational.
Our law-instructor president just doesn’t seem to be good at law at all (or perhaps he just doesn’t care):
Speaking at a White House press conference about government surveillance, terrorism, and other topics, the president was asked about his past statements that the people who attacked the U.S. consulate in Benghazi, Libya, last year would be brought to justice.
“We have informed, I think, the public that there’s a sealed indictment. It’s sealed for a reason. But we are intent on capturing those who carried out this attack, and we’re going to stay on it until we get them,’’ Mr. Obama said.
While the president of the United States can declassify top secret intelligence information on his own say-so, disclosing secret grand jury material is a different matter. Rule 6(e) of the Federal Rules of Criminal Procedure clearly states: “… no person may disclose the indictment’s existence except as necessary to issue or execute a warrant or summons.’’
Naturally, the White House tried to cover for him, explaining:
A White House official said the president “was simply referencing widely reported information and was not asked about, nor did he comment on any specific indictment.’’
But this explanation doesn’t jibe with Obama’s actual statement: “We have informed . . . the public that there’s a sealed indictment.” According to his own words, he, or his administration, disclosed the indictment.
POSTSCRIPT: Our law-professor president being bad at law has become a persistent pattern. For example, he recently blundered in such a way as to severely impede the prosecution of sexual harassment cases in the military.
The IRS’s misconduct seems to have dragged in the FEC as well:
Eliana Johnson finds that Lois Lerner appears to have colluded with an attorney in the Federal Election Commission’s general counsel’s office to influence the record before the FEC’s vote in the case of a conservative non-profit organization. Readers may recall that Lerner, the former head of the IRS’s exempt-organizations division, worked at the FEC from 1986 to 1995, and was known there for aggressive investigation of conservative groups.
Email traffic uncovered by the House Ways and Means Committee indicates that an attorney from the FEC’s enforcement division sought and received tax information about the status of a conservative group, the American Future Fund, before recommending that the commission prosecute it for violations of campaign-finance law. But the IRS is prohibited from sharing confidential taxpayer information, and the FEC is not exempted under that prohibition.
When it comes to Edward Snowden, who has stolen US secrets and delivered them to our nation’s enemies, President Obama says:
We don’t know exactly what he did, except what he said on the Internet and it’s important for me not to judge.
But, when it comes to a disputed self-defense case in Florida, that of George Zimmerman, our president is more than ready to judge.
In a lawsuit over President Obama’s immigration policy (in which he announced that he would not enforce the law for certain categories of illegal immigrants), a federal judge has ruled that Obama’s policy is illegal, but the plaintiff had no standing to sue. Consequently, the suit was dismissed and the illegal policy was permitted to stand.
This might even be the right decision under the law. Nevertheless, someone must have standing to sue. It cannot be the case that the president is breaking the law and the courts are somehow powerless to intervene. Can it?
One of the beneficiaries of Kathleen Sebelius’s shakedown of health care companies (she pressured them, under cover of authority, to contribute to organizations promoting Obamacare) is caught engaging in nakedly political activity:
Health and Human Services Secretary Kathleen Sebelius’ favorite pro-Obamacare nonprofit held a Democrats-only congressional briefing earlier this year, according to emails obtained by nonprofit watchdog Judicial Watch.
Enroll America president Anne Filipic, a former Obama White House aide, exchanged emails with Debra Curtis, a Democratic staffer on the House Ways and Means Committee.
“They [House Democrat leadership] want to do another one next week while Congress is in recess that would be open [to] all House Democratic Staff to start getting folks up to speed,” Curtis wrote to Filipic in a Feb. 11, 2013, email.
“We’ll check IDs to be sure we’ve got all Dems coming as well,” Curtis added the next day while projecting that a 100 people would attend.
Democrats haven’t really had to address Sebelius’s shakedown; with all the other Obama administration scandals sucking up all the oxygen, this didn’t get much attention. But if they did, I’m sure they would say that it was appropriate for her to fundraise for organizations seeking to further the government’s goals.
That wouldn’t be true in its own right — the government has no right to exploit its regulatory power to coerce any financial contributions in excess of legal tax liabilities — but this shows it’s not even true to that extent. Sebelius was extorting financial contributions to organizations engaging in partisan political activity. That’s a crime.
POSTSCRIPT: Sebelius sure is a piece of work.
Barack Obama, 2004:
There is not a liberal America and a conservative America — there is the United States of America.
Barack Obama, 2007:
I don’t want to pit red America against blue America. I want to be the President of the United States of America.
Barack Obama, 2008:
We are not a collection of red states and blue states. We are the United States of America.
That was when he was seeking office. Today, if you’re a Republican, Obama doesn’t care about you. You can’t even attend his speech:
Ten College Republicans were dubbed a security threat and refused admittance to President Barack Obama’s speech at the University of Central Missouri on Wednesday.
Despite the fact that the students had tickets to the event, security personnel turned them away at the door to the recreation center where Obama gave a speech on economic policy, telling the group it wasn’t about their politics but the president’s safety.
ASIDE: It should go without saying that the security justification was just a pretext. If the Secret Service can’t protect the president from a few College Republicans, he can’t be giving public speeches.
This isn’t just disgusting, it’s illegal. As Glenn Reynolds points out, discriminating based on political affiliation at a public university is a violation of the First Amendment. They ought to sue.
UPDATE: The Secret Service claims that they were turned away because the venue was full.
Barack Obama just isn’t a very good lawyer at all, is he?
Two defendants in military sexual assault cases cannot be punitively discharged, if found guilty, because of “unlawful command influence” derived from comments made by President Barack Obama, a judge ruled in a Hawaii military court this week.
Navy Judge Cmdr. Marcus Fulton ruled during pretrial hearings in two sexual assault cases — U.S. vs. Johnson and U.S. vs. Fuentes — that comments made by Obama as commander in chief would unduly influence any potential sentencing, according to a court documents obtained by Stars and Stripes. . .
“The bottom line is: I have no tolerance for this,” Obama said, according to an NBC News story submitted as evidence by defense attorneys in the sexual assault cases.
‘I expect consequences,” Obama added. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court martialed, fired, dishonorably discharged. Period.”
Obama sounded off without bothering to learn of the legal ramifications of a commander ordering a trial to deliver a certain sentence. His unlawful order has prevented exactly what he demanded.
His ill-considered action has tainted at least a dozen sexual assault prosecutions already. Two cases have been dismissed already.
Military law experts said that those cases were only the beginning and that the president’s remarks were certain to complicate almost all prosecutions for sexual assault. . .
“His remarks were more specific than I’ve ever heard a commander in chief get,” said Thomas J. Romig, a former judge advocate general of the Army and the dean of the Washburn University School of Law in Topeka, Kan. “When the commander in chief says they will be dishonorably discharged, that’s a pretty specific message. Every military defense counsel will make a motion about this.”
POSTSCRIPT: I’ll admit, I didn’t know about unlawful command influence before either. But then, I’m not the president.
The ACLU has changed its long-held position opposing double jeopardy and now approves of it, at least in George Zimmerman’s case.
The ACLU saving grace was always its consistency. They didn’t care about the right to keep and bear arms, and they didn’t much care about religious freedom, but they were strong on free speech and the rights of criminal defendants, even when the target was unpopular (such as the KKK or the cops in the Rodney King beating). Without that consistency, the ACLU is just another liberal pressure group.
POSTSCRIPT: I’ve been reading a lot of commentators who have been saying that re-trying George Zimmerman on federal charges would not be double jeopardy. Saying so is an offense against the semantics of the English language. It may be true that courts have ruled that way (I’m not saying they have, I don’t know), but if so, it is their error and we ought not go along with it. According to the phrase’s plain meaning, it is double jeopardy when the government gets another try at a defendant after he is acquitted. It changes nothing that they are re-trying him in a different venue, or on slightly different charges stemming from the same incident.
IRS chief counsel William Wilkins, who oversaw the IRS’s misconduct, and who is one of only two political appointments in the IRS, met with President Obama just two days before authoring the agency’s rules on dealing with Tea Party applications. I do hope someone asks what the meeting was about.
No one who paid attention to the George Zimmerman trial could have been at all surprised by the verdict, given Zimmerman’s story and utter lack of any credible evidence to contradict it. The real question is: with no evidence to convict him, why was Zimmerman charged in the first place?
Much of the story played out in public. The city of Sanford refused to prosecute. Inflamed by false reporting, the public was outraged, and Florida governor Rick Scott wilted under pressure. He appointed the execrable Angela Corey as special prosecutor, with a clear mandate to prosecute Zimmerman, which she did.
The little-known Community Relations Service is tasked with making peace in communities in conflict:
The Community Relations Service is the Department’s “peacemaker” for community conflicts and tensions arising from differences of race, color, and national origin. Created by the Civil Rights Act of 1964, CRS is the only Federal agency dedicated to assist State and local units of government, private and public organizations, and community groups with preventing and resolving racial and ethnic tensions, incidents, and civil disorders, and in restoring racial stability and harmony.
But making peace doesn’t advance Democratic interests, so in Eric Holder’s Justice Department, the CRS did exactly the opposite.
Now Zimmerman is acquitted, and the Justice Department isn’t satisfied with a pointless prosecution. They want to prosecute him for something, but all the talk of charging him with a hate crime is going nowhere. (If the shooting was justified, it can’t be a hate crime; plus there’s no evidence that the shooting had anything to do with race; plus Zimmerman actually has a long record of friendliness toward blacks.)
But, eager to find something they can charge Zimmerman with, the Justice Department has established a tip line:
“They were calling on us to actively refer anyone who had any information,” that might build a case against Zimmerman for either a civil rights violation or a hate crime, [activist Barbara] Arnwine said. “They said they would very aggressively investigate this case.” . . .
DOJ officials also said they would open a public email address so people could send in tips on the case. That email address, which is now in operation, is [redacted].
So this is how American justice works now? First you pick the target, then you inflame public opinion against him, and then you solicit accusations? Absolutely astonishing and appalling. America has sunk far.
A federal judge has issued an injunction in the Hobby Lobby case, barring enforcement of the HHS mandate to provide contraceptives and abortifacients.
This seems right to me; under the Religious Freedom Restoration Act, Hobby Lobby has a very strong case. The Act requires strict scrutiny of government compromises of religious freedom. Even if providing free contraceptive and abortifacients is taken to be a compelling state interest, there’s no way that requiring employers to provide them is a narrowly-tailored solution.
Another branch of the IRS scandal is opening:
For the first time, [Inspector General Russell] George revealed claims that IRS officials targeted political candidates for audits. . .
The story doesn’t offer any details, but when we do, I’m sure they will be damning. Not a single aspect of the IRS scandal has yet failed to be damning.
POSTSCRIPT: Remember, the tone is set at the top.
The saddest thing about this story might be that it’s not surprising any more:
A government watchdog has found for the first time that confidential tax records of several political candidates and campaign donors were improperly scrutinized by government officials, but the Justice Department has declined to prosecute any of the cases.
Its investigators also are probing two allegations that the Internal Revenue Service “targeted for audit candidates for public office,” the Treasury’s inspector general for tax administration, J. Russell George, has privately told Sen. Chuck Grassley.
In a written response to a request by Mr. Grassley, the ranking Republican on the Judiciary Committee, Mr. George said a review turned up four cases since 2006 in which unidentified government officials took part in “unauthorized access or disclosure of tax records of political donors or candidates,” including one case he described as “willful.” In four additional cases, Mr. George said, allegations of improper access of IRS records were not substantiated by the evidence.
The story doesn’t identify whose records were improperly accessed, but I think we can assume that the victims were opponents of the Obama administration.
ASIDE: Could one of the victims have been the Koch brothers? The White House claimed knowledge of their tax returns, which they had no legitimate access to. Another victim appears to be Christine O’Donnell.
It’s one thing for the misconduct to take place. A few bad apples and all that. It’s quite another for the Justice Department to refuse to prosecute. By so doing, the Obama administration has approved the misconduct after the fact. Worse, they are encouraging it to happen again.
The IRS claimed that its misconduct was limited to a few rank-and-file employees in Cincinnati. We’ve known that to be a lie almost from the beginning, but not how much until now:
The chief counsel’s office for the Internal Revenue Service, headed by a political appointee of President Obama, helped develop the agency’s problematic guidelines for reviewing “tea party” cases, according to a top IRS attorney.
In interviews with congressional investigators, IRS lawyer Carter Hull said his superiors told him that the chief counsel’s office, led by William Wilkins, would need to review some of the first applications the agency screened for additional scrutiny because of potential political activity.
The IRS scandal now goes all the way to the top. The Chief Counsel is one of only two political appointees in the entire agency.
Let’s dwell on that a little further: The lawyer that President Obama picked to run the IRS legal department was responsible for improperly harassing President Obama’s political opponents.
In a 2011 interview, Lois Lerner explains the IRS’s purpose behind sending massive, intrusive questionnaires:
Receiving a thick questionnaire from the IRS, she says, is a “behavior changer.”
She was discussing the practice in a different context than the IRS scandal, but this confirms — as we have long believed — that the purpose of invasive IRS inquiries is not actually to collect information.
It took a while for the Democrats to find their footing in the astonishing and appalling IRS scandal, but they now seem to have settled on a strategy. Conducting a good-faith investigation and reforming the agency is, of course, out of the question. (Indeed, the much-vaunted IRS investigation seems to be a Potemkin investigation, the FBI has not interviewed any of the targeted Tea Party groups — at least as of earlier this month.) No, Democrats like the IRS just the way it is.
So the strategy they have settled on is to allege that the IRS flagged for special scrutiny not only Tea Party and other conservative groups, but also progressive groups as well. This proves — supposedly — that the IRS was behaving in a non-partisan manner.
This narrative has a small grain of truth to it: The IRS did maintain BOLO (be on the lookout) lists of keywords to search for, and one of the many keywords was progressive. What the Democratic narrative leaves out is that the BOLO lists also instructed agents on what to do with the applicants that they flagged.
For Tea Party applicants the BOLO list instructed:
Any cases should be sent to group 7822. Liz Hofacre [more on this name later] is coordinating. These cases are currently being coordinated with EOT.
(The actual document is here.) From that referral, the harassment would begin.
The instructions for “progressive” applicants was entirely different:
Applicants submit form 1023. Their “progressive” activities appear to show that (c)(3) may not be appropriate.
What this means is that “progressive” groups appear to be involved in politics, which would make them ineligible to be 501(c)(3) “charitable” groups, to whom contributions are tax deductible. (This suggests that progressive groups had a history of improperly applying as 501(c)(3).) In contrast, most (perhaps all) Tea Party applicants applied as 501(c)(4) “social welfare organizations”, which are permitted some political activity.
In short, in regard to progressive groups, agents were just instructed to make sure that political groups were not applying 501(c)(3), which is entirely appropriate. The instructions did not prevent first-line screeners from approving the application, and they did not result in the kind of harassment that Tea Party applicants received.
Indeed, Liz Hofacre (the agent who received Tea Party applications) testified that, on the occasions in which she was sent a progressive application by mistake, she simply returned it:
When that occurred, pursuant to the instructions that were given to me, I would send those applications to general inventory since they were not within the scope of the Tea Party emerging issue.
(Emphasis mine.) And, if that that’s not clear enough, the notes for an IRS screening workshop specifically stated:
“Progressive” applications are not considered “Tea Parties”
(The actual document is here, hosted by the House Democrats, who have nevertheless failed to take notice of this particular element.) It should be obvious that there would be no need to distinguish progressive and Tea Party applicants if they both faced the same treatment.
To summarize then, progressive applicants faced only an appropriate review to ensure they weren’t trying to do politics under the 501(c)(3) umbrella, while Tea Parties were sent off for special treatment. Russell George, the Treasury Dept. Inspector General, made much of this explicit in his letter to the House Democrats:
Our audit did not find evidence that the IRS used the ‘progressives’ identifier as selection criteria for potential political cases between May 2010 and May 2012,” George wrote in the letter obtained by The Hill.
The inspector general stressed that 100 percent of the groups with “Tea Party,” “patriots” and “9/12” in their name were flagged for extra attention, while only 30 percent of the groups with “progress” or “progressive” were highlighted as potentially political. . .
“While we have multiple sources of information corroborating the use of Tea Party and other related criteria we described in our report, including employee interviews, e-mails and other documents, we found no indication in any of these other materials that ‘progressives’ was a term used to refer cases for scrutiny for political campaign intervention,” George wrote to Levin, the top Democrat on the tax-writing House Ways and Means Committee.
However, having settled on a narrative, the Democrats are not likely to be turned aside merely by a letter from the Inspector Genera. They have simply added George to their attack list. Not only does this help preserve their narrative, it also helps to neutralize the investigation.
Pro tip: when you conspire to fix prices, don’t brag about it to the press:
When asked by a reporter later that day why people would pay $14.99 in the iBookstore to purchase an e-book that was selling at Amazon for $9.99, Jobs told a reporter, “Well, that won’t be the case.” When the reporter sought to clarify, “You mean you won’t be 14.99 or they won’t be 9.99?” Jobs paused, and with a knowing nod responded, “The price will be the same,” and explained that “Publishers are actually withholding their books from Amazon because they are not happy.” With that statement, Jobs acknowledged his understanding that the Publisher Defendants would now wrest control of pricing from Amazon and raise e-book prices, and that Apple would not have to face any competition from Amazon on price.
The import of Jobs’s statement was obvious. On January 29, the General Counsel of [Simon & Schuster] wrote to [the CEO of S&S, Carolyn] Reidy that she “cannot believe that Jobs made the statement” and considered it “[i]ncredibly stupid.”
I really lament that this happened. I used to buy a lot of ebooks, but not any more because of the price. The publishers don’t seem to understand that ebooks are a lesser product than paper and ought to cost less. Sometimes ebooks actually cost more!
It would be nice if this case returned ebook prices to where they once were, but it won’t.
I’m not much of a fan of chalking myself; I think it’s tacky in most circumstances. But it’s clearly a form of speech, isn’t it?
Jeff Olson, the 40-year-old man who is being prosecuted for scrawling anti-megabank messages on sidewalks in water-soluble chalk last year now faces a 13-year jail sentence. A judge has barred his attorney from mentioning freedom of speech during trial.
Barred from mentioning freedom of speech during trial? In for a penny, in for a pound, I guess. Anyway, the jury acquitted him, but they shouldn’t have had to.