Internet Scofflaw

Another case of eminent domain abuse in New York City.

The New York Times reports:

Starting in November 2008, the Federal Reserve Bank of New York under Timothy Geithner began urging American International Group, the huge insurer that the government had bailed out, to limit disclosure on payments made to banks at the height of the financial crisis. . .

The e-mail exchange between the bailed-out insurance giant and its regulator portray a strange reversal of roles, with A.I.G. staff arguing for the disclosure of certain details on payments for credit-default swaps to major banks, only to be discouraged by officials at, or representing, the Federal Reserve. . .

In a draft of one regulatory filing, A.I.G. stated that it had paid banks . . . the full value of C.D.O.’s, or collateralized debt obligations, that they had bought from the company. In the response to that draft from the law firm Davis Polk and Wardwell, which represented the New York Fed, that crucial sentence was crossed out, and did not appear in the final version filed on Dec. 24, 2008.

By the end of that month, A.I.G. had become the proxy in a tug-of-war between government agencies, with the Securities and Exchange Commission asking the company to revise its disclosure, which the regulator saw as falling short of full compliance.

Geithner’s appointment keeps looking worse and worse.

(Via the Corner.)

President Obama has issued an executive order that gives Interpol full diplomatic immunity.

Why? It’s not a rhetorical question; I really don’t get it. There’s an obvious downside: an international police force that is not answerable to the law. But what is the upside? Even looking for a cynical political benefit, I can’t see one. Steve Schippert thinks it’s a part of a scheme to get America into the International Criminal Court.

(Via the Corner.)

POSTSCRIPT: “Diplomatic immunity” is probably a term of art with someone. I’m not using it that way. (You can read the article to find out exactly what the order does.) But the order definitely gives Interpol privileges that no police force should have, especially an international one.

AP reports:

The majority leader of the Pennsylvania House directed campaign activities by legislative employees and raised campaign funds from inside the Capitol, according to witness testimony in transcripts obtained by The Associated Press.

The witnesses in the widening probe, which has reached top levels of the state General Assembly, allege conduct by Todd Eachus similar to that for which 25 others have been charged.

Eachus has not been charged, and the allegations date to before he was elected majority leader a year ago.

John Paul Jones, a $62,000-a-year legislative research specialist until December 2007, told the grand jury that Eachus, D-Luzerne, brought him onto the state payroll after the November 2006 election, which returned Democrats to the majority in the House, with a cover story about his legislative work.

“That was sort of like the code of, here’s what I do, but really I was solely there as a political guy,” Jones said.

Jones testified that Eachus told him he considered the General Assembly’s capability to produce public service announcements a free tool to help incumbents get re-elected.

For nearly three years, state Attorney General Tom Corbett has been investigating whether state lawmakers and their aides used legislative employees and state-owned equipment for campaign purposes.

The scandal began with news that millions in bonuses had been quietly handed out to employees of the General Assembly, and a series of five grand jury reports has alleged that many of those bonuses were part of a conspiracy that also involved state contracts and computer equipment, as well as some of the highest-ranking members of the state House and aides. . .

In a May 2008 grand jury appearance, Jones said that while he was working for the House Democratic Campaign Committee in the run-up to that pivotal 2006 election, he and another campaign committee employee worked closely with Eachus out of an office in the Capitol’s East Wing.

He said they helped Eachus phone Democratic state representatives to pressure them either to donate to the campaign committee or promise to spend a certain amount on their own races.

“As Todd would often say, he wanted to spend what he called soft dollars, which were government dollars, on public service announcements so that we had to ultimately spend less hard campaign dollars,” Jones testified.

Jones said that for a time he and two other legislative aides spent nearly all day on political matters, raising money and performing other campaign-related duties.

(Via Instapundit.)

Alberta’s Court of Queen’s Bench (a provincial appeals court), has overturned the astonishing lifetime speech ban against Stephen Boissoin, a pastor who wrote a letter to editor of his local paper criticizing the “wicked” homosexual agenda. The Alberta “Human Rights” Commission had ordered that Boissoin refrain from any disparaging remarks about homosexuals in any venue, including the pulpit.

I’d like to call this a big victory for freedom of speech and religion in Canada, but I think the chilling effect is already in place, particularly since it took over a year for the court to overturn the travesty. Still, at least we can say that freedom of speech and religion aren’t dead in Canada yet.

(Previous post.)

Well here’s a shocker:

A report Friday by the Justice Department’s independent inspector general revealed that ACORN won approval for nearly $200,000 in Justice grants since 2002 and mismanaged some of the money.

Big Government has obtained the police report from the incident at a Russ Carnahan (D-MO) town hall in which Kenneth Gladney was attacked by SEIU thugs. The report puts the lie to the spin put out by the SEIU and its enablers in the blogosphere left. It shows that Gladney was attacked viciously and without provocation:

As I walked up to the crowd, several people approached me and were saying the above suspects, McCowan and Molens, had just assaulted a black male who was still around the back side of the school. . . Suspect Molens had his back to me and I observed him yelling and pointing at several individuals. . .While waiting for additional units to make it to my location I attempted to detains Suspects Molens and McCowan for a further investigation into the incident. I had to tell Suspects Molens and McCowan to remain in front of me several times, as they tried numerous times to get lost in the crowd and get past me.

The three above listed witnesses contacted me and stated that they would wait until the scene was brought under control prior to providing me with witness information. . .

I then contacted Witness #1, Harris Himes. Witness H. Himes stated that as he was leaving the school gymnasium, he saw Suspect McCowan talking to Victim Gladney. He stated that he saw Suspect McCowan reach over the table and punch Victim Gladney in the face. This assault knocked the victim off balance. Suspect Molens then went around the table and pulled Victim Gladney over the table backwards by the back of his shirt collar. He began to punch and kick Victim Gladney. Witness H. Himes added that while Suspect Molens was kicking and punching Victim Gladney, Suspect McCowan then joined in on the assault.

Witness #2’s, Sandra Himes’, statement of the incident concurred with Harris’ account of the incident. She did add that Victim Gladney did nothing to provoke this assault.

At this time I was contacted by the victim, Kenneth E. Gladney. . . Victim Gladney appeared shaken and his clothes were in disarray. . .

Gladney stated that he was handing out pens and buttons outside the gym. He stated that is when Suspects Molens and McCowan, along with a third suspect who is unidentified at this time, walked by his table. Suspect McCowan picked up one of the buttons from Gladney’s table and said, “Who’s sellin this shit?” Victim Gladney stated, “I’m not selling anything. It’s free.” At this time Suspect McCowan said, “What kind of nigger are you?” Suspect McCowan then reached across the table and punched Victim Gladney in the face. Victim Gladney added that Suspect Molens grabbed him from behind, at which time he was struck several times and taken to the ground. At this time he was struck several more times. . .

I was then contacted by Witness #3, [redacted], gave a similar account of the original assault. I would like to add that when I originally walked up to the crowd, Witness [redacted] was one of the individuals being yelled at by Suspect Molens. . .

Suspects Molens and McCowan were arrested for the charges of Assault 3rd and Interfering with the Duties of a Police Officer. . .

This case will be presented to the St. Louis County Counselor’s Office for consideration reference the above noted criminal charges.

It’s clear from the report that these two men perpetrated a vicious and unprovoked assault. Why haven’t they been prosecuted? Unfortunately, the St. Louis district attorney, Bob McCulloch, has a history of abusing the power of his office for political purposes. During the 2008 presidential election campaign, Bob McCulloch joined the “Barack Obama Truth Squad“, a coalition of Missouri law enforcement formed “to target anyone who lies or runs a misleading television ad during the presidential campaign”. As we’ve seen clearly during the past year, “misleading” is very much in the eye of the beholder.

(Via Instapundit.)

The New York Post reports:

A City Council hopeful won’t cough up documents related to whether the Working Families Party is scamming the campaign finance system — because the case could involve “criminal liability,” according to documents released yesterday.

The bombshell development was revealed at a court hearing where lawyers for the WFP and the campaign of Staten Island candidate Debi Rose tried to get a suit against them tossed. . .

The WFP and Rose had tried Thursday to buck a discovery request saying they had to produce documents and campaign finance records.

A lawyer for the campaign said Rose’s treasurer, David Thomas, wouldn’t produce them because they “may implicate criminal liability and his client would therefore have Fifth Amendment rights protecting him from having to make any such compelled disclosure,” according to the affidavit, which quoted a deputy clerk in the Appellate Division.

The “Working Families Party” is one of the organizations in the ACORN network.

(Via Instapundit.)

AP reports:

The mayor of Alabama’s largest city is facing a federal bribery trial that could drive him from office and send him to prison if he’s convicted.

Prosecutors say Birmingham Mayor Larry Langford took clothing, a Rolex watch and other bribes totaling some $235,000 while serving on the Jefferson County Commission. In exchange, they say Langford steered $7.1 million in county bond business to a political crony’s investment firm. . .

Langford says everything that changed hands were gifts between friends. He also claims his prosecution is part of a Republican scheme to target Democrats in Alabama.

In Baton Rouge, Louisiana, you can’t beat a ticket from a red-light camera, even when you’re obviously innocent. As far as a local news team could determine, there is no court that will review them.

ASIDE: The title of the story isn’t quite apt. This isn’t a case of “guilty until proven innocent”; it’s “guilty even if proven innocent”.

(Via Instapundit.)

Suing is the stupidest thing ACORN could possibly do right now. I honestly thought that would keep them from doing it. Bring on the discovery!

UPDATE: Some legal commentary here.

UPDATE: Some more legal analysis here.

(Previous post.)

James O’Keefe has released yet another video of ACORN criminal behavior. That makes four now: Baltimore, DC, Brooklyn, and now San Bernadino, California. I’d say he has pretty well demolished ACORN’s claim that this is just a few bad apples.

And Hannah Giles hints of more to come:

1. Ask A Question: What if a “prostitute” and her alleged law school boyfriend walk into ACORN seeking housing for an underage brothel to fund his future congressional campaign?
2. Do Background Research:
   1. Learn as much about ACORN housing procedures and protocol as possible.
   2. History of ACORN and their effect on the United States
3. Construct a Hypothesis: ACORN is corrupt and it is in their nature to promote and disguise illegal behavior.
4. Experiment: Baltimore, DC, Brooklyn, San Bernardino, and…
5. Analyze and draw a conclusion.

(Emphasis mine.) (Previous post.)

I’ve long been uncomfortable with the idea of registering sex offenders who have served their full sentence. Whatever the courts may have ruled, it doesn’t seem constitutional to impose penalties on criminals beyond what the criminal courts impose.

The Economist points out another problem: existing laws go much further than can be justified on public safety grounds, registering people who are no threat to society. Not only do they needlessly ruin lives, but they also make sex-offender registries ineffective, because it’s impossible to tell who the real dangers are.

There’s a new wrinkle in the ACORN scandal; ACORN has no license to operate in Maryland:

STATE OF MARYLAND
Department of Assessments and Taxation . . .

I FURTHER CERTIFY THAT ASSOCIATION OF COMMUNITY ORGANIZATIONS FOR REFORM NOW, INC., A ARKANSAS CORPORATION, IS NOT IN GOOD STANDING WITH THIS DEPARTMENT FOR THE FOLLOWING REASONS:

THE AUTHORITY OF THIS CORPORATION TO DO BUSINESS IN MARYLAND WAS FORFEITED BY THIS DEPARTMENT ON NOVEMBER 16, 2006.

(Previous post.)

(I’m late in reporting this story, because I didn’t have the time to give it the treatment it deserves. And my how the story has grown in the meantime.)

ACORN, the community-organizing and voter-fraud organization, has long been savaged for its various criminal activities. On September 9, they hoped they had gotten in front of their bad reputation when they turned in eleven of their workers for forging voter registrations. This, they argued, was proof that ACORN could police itself:

“Over the last five years thousands of dedicated people have worked or volunteered with Florida ACORN. . . Fortunately, our quality control managers and the systems we developed ensured their ability to spot the isolated wrongdoing by these 11 workers who tried to pass off phony forms instead of doing their work.”

The very next day, James O’Keefe went public with the results of his hidden camera investigation. (Transcript here.) O’Keefe went to an ACORN office in Baltimore posing as a pimp. He brought along Hannah Giles who posed as a prostitute. They spun a tail of various criminal activities, including fraud, child prostitution, and human trafficking. ACORN was all too happy to help. For example, the ACORN consultant suggested that Hannah list her occupation as “performance artist”, she recommended that they understate their income to the IRS, and she gave them advice on how to conceal their underage prostitutes (imported from El Salvador) from the authorities.

ACORN denied everything:

A spokesman for ACORN, Scott Levenson, when asked to comment on the videotape, said: “The portrayal is false and defamatory and an attempt at gotcha journalism. This film crew tried to pull this sham at other offices and failed. ACORN wants to see the full video before commenting further.”

ACORN’s denial proved premature. First, it rang hollow when ACORN quickly fired the staffers. Then, O’Keefe released his second hidden camera investigation, in which he and Giles told the same story at an ACORN office in DC. (Transcript here.) Again, the staffers were happy to help. ACORN quickly fired those staffers as well.

Desperate to get in front of the scandal, ACORN issued a statement accusing Fox News of racism. (ACORN erroneously gave Fox credit/blame for O’Keefe’s work, presumably because Fox News is unpopular among its base of support.) That’s right, ACORN abets trafficking in underage prostitutes, and Fox News is somehow racist for reporting the scandal. The small consolation for ACORN is that most of the media was not so “racist”, and ignored the whole affair. At first.

ACORN still had its supporters. The state attorney in Baltimore issued an amazing statement indicating that it had no plans to prosecute ACORN, but it would investigate criminal wrongdoing by O’Keefe! (It seems that hidden microphones are illegal under Maryland law, but the state attorney had not previously prosecuted journalists for hidden camera investigations.) It’s not surprising to learn that Patricia Jessamy, the state attorney in question, is a Democrat who served on a steering committee for the Obama campaign.

But the Census Bureau, which had a controversial deal with ACORN to assist in the census, had heard enough. Citing “worsening negative perceptions” (I’d say so!), it cancelled its deal with ACORN.

ACORN continued to try to defend itself. It issued a statement threatening legal action against Fox News. That is almost certainly a bluff (and a clumsy one), because — aside from having no case — the last thing ACORN wants is for someone to have the opportunity for discovery. The statement also said:

“This recent scam, which was attempted in San Diego, Los Angeles, Miami, New York, Philadelphia to name a few places, had failed for months before the results we’ve all recently seen.”

This turned out to be a lie, at the very least in regards to New York, as we learned when O’Keefe released his third video. In the third video, O’Keefe and Giles told the same story (fraud, underage prostitution, human trafficking) at an ACORN office in New York, and again received their assistance.

That was finally too much for Congress. The Senate voted 83-7 to cut off funding for ACORN and the House is due to consider similar action shortly. (Among the seven who voted with ACORN was Pennsylvania’s Bob Casey. His father must be rolling in his grave. Roland Burris (D-IL), who is only in the Senate because Democratic leaders quashed proposals for a special election, is another.) Meanwhile, the Brooklyn DA’s office says they will be taking a look, and ACORN may be vulnerable under RICO as well. (It’s hard to imagine Eric Holder approving an investigation of ACORN though.)

The question now is, what happens next?

UPDATE: What happens next is a fourth video.

In the Supreme Court’s rehearing of Citizens United v. FEC, the Obama administration stuck by its guns, arguing that a government power to ban political books is consistent with the First Amendment. Beyond that, the administration argued that the power to ban electronically transmitted books (such as Kindle books) is already present in the statute in question.

Got that? The government says that, under existing law, it has the power to ban political e-books in some circumstances.

The administration argues that we can trust them not to do so, to which Chief Justice Roberts replied, “we don’t put our First Amendment rights in the hands of FEC bureaucrats.” And well we don’t, because in the administration lawyer’s very next breath, she said that pamphlets are different; they might very well ban a pamphlet.

To summarize: under the Obama administration’s argument, our right to publish books is not absolute. It depends on a variety of factors including (1) content, (2) length, (3) means of transmission, and (4) means of financing. I think I like the First Amendment better.

How these people can call themselves liberals is beyond me.

(Previous post.)

The Washington Times reports.

(Previous post.)

UPDATE: In light of this, there’s good reason to worry that the DOJ’s internal investigation isn’t real, and is merely intended to run interference against the Commission on Civil Rights’s investigation. Hans van Spakovsky agrees.

The Ecuadorean lawsuit against Chevron was already a travesty. Now it’s been shown to be a complete sham. A series of videos show that the judge has been bribed and has promised to rule against Chevron. The Ecuador’s execrable president, Rafael Correa, also stands to profit personally from the scheme.

I don’t know if the revelation will be enough to save Chevron in Ecuador, but I assume it should make it impossible for Ecuador to collect in US court.

(Previous post.)

For the rest of us, the Geithner defense (“it’s the software’s fault”) is no defense at all. (Via Instapundit.)

The LA Times reports:

Reporting from Alexandria, Va. – A Lebanese citizen being held in a detention center here was hooded, stripped naked for photographs and bundled onto an executive jet by FBI agents in Afghanistan in April, making him the first known target of a rendition during the Obama administration.

Unlike terrorism suspects who were secretly snatched by the CIA and harshly interrogated and imprisoned overseas during the George W. Bush administration, Raymond Azar was flown to this Washington suburb for a case involving inflated invoices. . .

Joanne Mariner, terrorism and counter-terrorism director at Human Rights Watch, called the case “bizarre.”

“He was treated like a high-security terrorist instead of someone accused of a relatively minor white-collar crime,” she said.

Justice Department lawyers have denied any misconduct in the case.

(Via Volokh.)

Let’s see if I understand the Obama administration position. Rendition is wrong for terrorists. But rendition is appropriate for white-collar criminals. I hope we’re missing part of the story, because this is just bizarre.

One of the guests at the White House party to celebrate the Sonia Sotomayor’s confirmation to the Supreme Court was John DeStefano, the mayor of New Haven. If that name rings a bell, it’s because DeStefano was the defendant in Ricci v. DeStefano, the notorious racial discrimination case in which Sotomayor was recently overturned 9-0 after failing to bury the case.

It’s not hard to see the message that the White House is sending vis-a-vis racial preferences.

This really takes the cake. The State of California pays its suppliers in fake money, then expects them to turn around and pay sales tax in real money:

Small businesses that received $682 million in IOUs from the state say California expects them to pay taxes on the worthless scraps of paper, but refuses to accept its own IOUs to pay debts or taxes. . .

Lead plaintiff Nancy Baird filled her contract with California to provide embroidered polo shirts to a youth camp run by the National Guard, but never was paid the $27,000 she was owed. She says California “paid” her with an IOU that two banks refused to accept – yet she had to pay California sales tax on the so-called “sale” of the uniforms.

I think Baird has a strong case. She hasn’t been paid yet, so no sales tax is due. California’s position seems to be that she should pay the state for privilege of supplying it.

David Hardy says that the White House’s plan to collect reports of dissident activity is illegal, assuming records are kept.

(Via Instapundit.) (Previous post.)

UPDATE: More:

The White House strategy of turning supporters into snitches when they see “fishy” information about the health care debate may run afoul of the law, legal experts say.

“The White House is in bit of a conundrum because of this privacy statute that prohibits the White House from collecting data and storing it on people who disagree with it,” Judge Andrew Napolitano, a FOX News analyst, said Friday.

“There’s also a statute that requires the White House to retain all communications that it receives. It can’t try to rewrite history by pretending it didn’t receive anything,” he said.

“If the White House deletes anything, it violates one statute. If the White House collects data on the free speech, it violates another statute.”

It would seem that the only way to follow the law would be not to ask for the information in the first place.

The Washington Times has a lengthy account of how the Black Panther voter intimidation case came to be dismissed, after Justice Department lawyers had already won the case. Thomas Perrelli, the #3 official at the Justice Department (and a political appointee, of course), made the final decision that a suitable penalty for flagrant voter intimidation was an injunction against doing it again.

(Via the Corner.) (Previous post.)

UPDATE: More here. This keeps smelling worse and worse. (Via the Corner.)

Two New York State Senators have switched parties, switching control of the chamber from Democrat to Republican. Such occasions are rare, but they do happen, most notably in the US Senate in 2001.

But in New York State there’s a twist. The Democrats are refusing to recognize that they have lost control of the chamber. They claim that it’s somehow illegal, and they still control the chamber, despite being the minority. Needless to say, they have yet to produce a legal theory that justifies their claim.

Ironically, however, one law has certainly been broken, by the Democrats. In an effort to delay their ouster, Democrats put the chamber into recess and locked the doors. This violates the New York State constitution, which says “The doors of each house shall be kept open, except when the public welfare shall require secrecy.”

Good news: the Second Circuit has halted the Chrysler bankruptcy to hear Indiana’s appeal.

(Previous post.)

UPDATE: The appeals court will permit the sale to go forward.

The Justice Department says this is no big deal:

The Washington Times reports:

Justice Department political appointees overruled career lawyers and ended a civil complaint accusing three members of the New Black Panther Party for Self-Defense of wielding a nightstick and intimidating voters at a Philadelphia polling place last Election Day, according to documents and interviews.

The incident – which gained national attention when it was captured on videotape and distributed on YouTube – had prompted the government to sue the men, saying they violated the 1965 Voting Rights Act by scaring would-be voters with the weapon, racial slurs and military-style uniforms.

Career lawyers pursued the case for months, including obtaining an affidavit from a prominent 1960s civil rights activist who witnessed the confrontation and described it as “the most blatant form of voter intimidation” that he had seen, even during the voting rights crisis in Mississippi a half-century ago.

The lawyers also had ascertained that one of the three men had gained access to the polling place by securing a credential as a Democratic poll watcher, according to interviews and documents reviewed by The Washington Times.

The career Justice lawyers were on the verge of securing sanctions against the men earlier this month when their superiors ordered them to reverse course, according to interviews and documents. The court had already entered a default judgment against the men on April 20.

A Justice Department spokesman on Thursday confirmed that the agency had dropped the case, dismissing two of the men from the lawsuit with no penalty and winning an order against the third man that simply prohibits him from bringing a weapon to a polling place in future elections. . .

The three men named in the complaint – New Black Panther Chairman Malik Zulu Shabazz, Minister King Samir Shabazz and Jerry Jackson – refused to appear in court to answer the accusations over a near-five month period, court records said. . .

Court records show that as late as May 5, the Justice Department was still considering an order by U.S. District Judge Stewart Dalzell in Philadelphia to seek judgments, or sanctions, against the three Panthers because of their failure to appear. But 10 days later, the department reversed itself and filed a notice of voluntary dismissal from the complaint for Malik Zulu Shabazz and Mr. Jackson.

(Via Instapundit.)

Apparently, President Obama’s political appointees at the Justice Department think that a suitable penalty for blatant voter intimidation (by Democrats) is a court order not to do it any more.

This scandal may have legs. Rep. Lamar Smith (R-TX), the ranking member on the House Judiciary Committee, is demanding answers.

(Previous post.)

The Obama administration succeeded in bullying Chrysler’s major private creditors out of objecting to the Chrysler-UAW deal, but the state of Indiana is objecting on behalf of the retirement plans of its teachers and state police.

This is very good news.  Despite the deal being illegal, the administration was on the verge of getting away with it, and setting a terrible precedent in the process.  Now there should be a real hearing in court.

President Obama is right that releasing more photos of detainee abuse would make the war effort harder and would not help increase our understanding of what had happened there.  All it would do is provide more propaganda ammunition to America’s enemies.  I was going to post to that effect, but before I got a chance to do so, I read an eye-opening analysis by Andy McCarthy.

The background is the question of whether the Obama administration is bringing a new argument to the court or simply taking up the Bush administration’s case.  The question is important because the court already ruled against the Bush argument, and the Obama administration failed to appeal.  McCarthy explains that the answer is the latter (despite Robert Gibbbs’s hapless efforts to argue otherwise), which places the administration into an awkward legal position.  He then continues:

Why all the legerdemain? Because . . . Obama is using this litigation as a smokescreen. He’s now getting plaudits for reversing himself and his Justice Department (which, in contrast to the Bush Justice Department, didn’t want to fight this case at all — just wanted to release the photos). But he is still trying to get away with voting present — which is to say, he is hiding behind the judges.

It is in Obama’s power, right this minute, to end this debacle by issuing an executive order suppressing disclosure of the photos due to national security and foreign policy concerns. As I’ve noted, there’s no need to get into a Bush-era debate over the limits of executive power here. In the Freedom of Information Act, indeed, in FOIA’s very first exemption, Congress expressly vests him with that authority. . .

Besides being simple, issuing such an order would be a strong position and the screamingly obvious right thing to do. But it would also be a fully accountable thing to do, and that’s why President Obama is avoiding it. He realizes — especially after he surrendered details of our interrogation methods to the enemy — that he can’t afford to undermine the war effort again so quickly and so blatanly; but his heart is with the Left on this — that’s why he agreed to the release of the photos in the first place and why he is trying to prevent mutiny within his base. So here’s the game: Obama tells those of us who care about national security that he is taking measures to protect the troops and the American people, but he also tells the Left that he hasn’t made any final decisions about the photos and that the question is really for the courts to decide. That’s why he carefully couched yesterday’s reversal as a “delay” in the release of the photos.

We’re happy as long as the photos stay under wraps, but the wink to the Left is his signal that if, after further review, the courts continue to hold that disclosure is required under the FOIA section the government has invoked — which is not the executive order provision but a section relating to the withholding of records “compiled for law enforcement purposes”— he may just shrug his shoulders and release the photos.

It doesn’t seem that the straddle is working.  Not only is President Obama being savaged by the left, but he’s going to run into real trouble in court.  McCarthy summarizes:

One last thing: I think the court rulings have been bad so far, but good or bad, I can assure you that federal judges don’t like to be toyed with. Supreme Court justices may not mind if the administration treats the media like a lap-dog and the public like we’re a bunch of rubes; but, regardless of their political leanings, the justices have goo-gobs of self-esteem, and they will not take kindly to being treated like pawns in the Obamaestro’s game.

UPDATE (5/22): It appears that Congress may bail out the president on this issue.

Michael Ramirez nails it again:

(Via Power Line.)

The leaks from the Justice Department’s Office of Professional Responsibility in the investigation of John Yoo and Jay Bybee not only violate Justice Department rules but also violate federal law.  The OPR is permitted to release only the final report, and even that only after Yoo and Bybee’s attorney’s have had a chance to comment.  The leaks issuing from the “Office of Professional Responsibility” are not only unethical, but criminal.  (George Orwell, call your office.)

So, let’s review the status of the investigation into the “torture memos”:

1. The OPR leaks are a criminal violation of the Privacy Act.
2. John Yoo cannot be sanctioned anyway, because too much time has elapsed for a complaint against him.
3. Professional sanction would have been (and is, for Bybee) extremely unlikely in any case, as it would require a finding that no reasonable lawyer could have produced their reasoning. That finding is nearly impossible, if for no other reason than:
4. The Obama-Holder Justice Department has argued the legal theory propounded in the “torture memos” in its filing in Demjanjuk v. Holder.
5. And, by a 10-3 margin, the Third Circuit Court of Appeals has adopted that same legal theory in Pierre v. Attorney General.

What we are watching cannot be described in any terms other than as a partisan witch-hunt.

POSTSCRIPT: The Washington Post argues that the leaks in the case are insufficient, and the OPR should release all the raw material from its investigation.  I wouldn’t be surprised if the Post gets its wish, but let’s not forget that what they’re asking violates federal law.

ABC News reports:

It appears John Yoo cannot be disciplined or disbarred for writing those memos, even if the Office of Professional Responsibility says it has evidence he should be.

That’s because OPR’s five-year investigation—carefully timed for release only as Bush was leaving the White House and Obama was coming in—dragged on too long. As a result of that timing, OPR blew the deadline for referring possible misconduct allegations against Yoo.

John Yoo is admitted to the bar in Pennsylvania. But the Pennsylvania Disciplinary Board, which would investigate any complaints against him, imposes a four-year limitation for complaints.

Yoo wrote the memos in 2002 and 2003. This is 2009. You do the math.

(Via the Corner.)

The OPR delayed its report to a time when it would generate maximum political impact, but could no longer result in any consequences. Obviously, there is only one way that makes sense, and that’s if the sole purpose of the investigation is the political impact.

The “Office of Professional Responsibility” is sounding profoundly ill-named.

Andy McCarthy declines to serve on the President’s Task Force on Detention Policy:

In light of public statements by both you [the Attorney General] and the President, it is dismayingly clear that, under your leadership, the Justice Department takes the position that a lawyer who in good faith offers legal advice to government policy makers—like the government lawyers who offered good faith advice on interrogation policy—may be subject to investigation and prosecution for the content of that advice, in addition to empty but professionally damaging accusations of ethical misconduct.  Given that stance, any prudent lawyer would have to hesitate before offering advice to the government. . .

Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting.

I’ve been thinking for a long time about how there ought to be a constitutional amendment to restore federalism and establish proper jurisprudence.  Randy Barnett, in a piece for the Wall Street Journal, goes one step further and proposes actual text, and a strategy for getting it adopted:

Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.

Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.

Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.

Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.

Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.

(Via Instapundit.)

One very clever thing about this proposal is section 1, which actually expands federal power to grant it much of what is has already claimed. The power to regulate interstate commerce has been read expansively to constitute the power to regulate interstate anything, and a lot of important legislation (some of it even worthy) is based on that power. By explicitly giving the federal government such power, it removes one major pressure on the courts to do violence to the Constitution.

Sections 2 and 3 remove powers the federal government was never supposed to have (but explicitly allow it to continue paying social security and the like), and section 5 states that the Constitution means exactly what it says.  I suspect that repealing the income tax (section 4) is a bridge too far, but it’s worthwhile as a starting point.

I think the biggest blunder in the framing of the Constitution was its failure to enumerate the federal government’s interstate commerce powers.  By giving it a blanket power to regulate interstate commerce, it opened the door for most of the mischief the government practices today.  If I could go back in time to the convention, that is what I would try to fix.  But given where we are today, Barnett’s proposal is the best I’ve seen.

President Obama hints that he is open to prosecuting Bush administration lawyers for their legal advice.  (Via Instapundit.)

This is stupid, but more than that, if we start down the path of political prosecutions of the previous administration, we will become a very different country than we have ever been.  In the short run, Democrats should not delude themselves that they will never be on the other side.  In the long run, if we create a system in which one side no longer feels they can risk losing an election, that will spell the end of the Republic.

UPDATE: The Wall Street Journal weighs in.

UPDATE: Shannon Love takes a contrarian view.  She thinks the administration wants to play up the supposed crimes of the Bush administration, but will stop short of any actual trials, which would exonerate them.  (Via Instapundit.)

As a casual follower of the NFL, I’ve long known the story of the Baltimore Colts, who secretly packed up in the middle of the night and moved to Indianapolis without warning.  This was usually portrayed as the ultimate insult to the fans.  What I didn’t know was the fascinating story behind their move.

It turns out that the Colts franchise was at an impasse in its negotiations with the city of Baltimore, and what the city could not retain by negotiation, it sought to retain by theft.  The Maryland legislature was on the verge of passing a bill that would give Baltimore the power to condemn the franchise and give it to someone else, someone that would keep it in Baltimore.  This bizarre abuse was made possible by court rulings that had allowed the city of Oakland to do the same with the Raiders.

The night before the legislature was due to pass the bill, the Colts packed up and moved out of state.  Once they had escaped from Maryland, the city couldn’t touch them.

So this isn’t the story of a team paying the ultimate insult to its fans. Who knows?  If Baltimore hadn’t played dirty and forced the Colts’ hand, maybe they could have come to an agreement.  This is the story of a property owner heroically standing up against a government determined to rob it.

It’s also a story that illustrates the foolishness of trying to condemn mobile assets.  Amazingly, Maryland learned nothing from the Colts fiasco and is at it again.  It seems that the Preakness Stakes is considering moving out of state, and Maryland is once again thinking of condemning it to keep it in the state.  It would be particularly foolish this time.  First, because they’ve already seen what can happen. Second, because the Preakness Stakes is mostly intellectual property that can be moved even more easily than the Colts.  And third, because the owners are currently leaning against moving it.  It would be the height of folly for the state to give them an incentive to move overnight when they are currently planning to stay.  But, no one ever accused the Maryland legislature of wisdom.

Attorney General Holder refuses to release the OLC opinion that concluded the DC voting act is unconstitutional.  I’m sure the Democratic leadership won’t issue a subpoena, but there are surely several Freedom of Information Act requests on their way.

Perhaps he should listen to Dawn Johnsen, the President Obama’s nominee to head the OLC, who wrote:

OLC should follow a presumption in favor of timely publication of its written legal opinions. Such disclosure helps to ensure executive branch adherence to the rule of law and guard against excessive claims of executive authority. Transparency also promotes confidence in the lawfulness of governmental action.

(Via the Corner.) (Previous post.)

An article (pdf) by Jonathan Turley in the George Washington Law Review argues convincingly that the DC voting rights bill is unconstitutional (that’s easy), and further that DC cannot constitutionally be made into a state either.

The problem can be resolved legally only by moving the residents of the District of Columbia into a state (such as by retrocession), or by a constitutional amendment.  Retrocession seems preferable to me, as it would fix not only the problem of representation, but also the more general problem of which representation is an symptom: the bizarre special status of DC.

An obstacle to retrocession is the fact that years of mismanagement make Washington, D.C. an unattractive addition to any state.  That obstacle could possibly be resolved through a federal pledge to cover Maryland’s DC-related costs for several years to come.

Either way, retrocession or amendment, Democrats will have to lower their sights.  Retrocession would add one Democratic representative (in Maryland), but it would end the DC representation debate.  It would not set a precedent that would lead ultimately to two additional Democratic senators.  The same is true of any amendment that would be likely to pass.  For that reason, DC representation will not happen until all the other schemes (unconstitutional but more attractive to Democrats) have been conclusively eliminated by the Supreme Court.

It doesn’t get more blatant than this:

Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster. . .

In deciding that the measure is unconstitutional, lawyers in the department’s Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.

Holder rejected the advice and sought the opinion of the solicitor general’s office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.

Democratic and Republican Justice Department veterans said it is unusual, though not unprecedented, for the solicitor general, who backs the administration’s position before the Supreme Court, to be asked to weigh in before a case makes its way into a courtroom. 

(Via Instapundit.)

I thought it was bad to politicize the Justice Department, or to override the OLC.  What’s changed?

Anyway, Holder, bringing the chutzpah, actually claims this wasn’t political:

Through a spokesman, Holder portrayed the basis for his override of the OLC ruling as grounded in law, not politics.

Yeah, right.  With a bill less blatantly unconstitutional, you could make this argument fly.  This is not such a bill; it sets aside Article 1, Section 2 (the Constitution’s second sentence after the preamble) and creates a new House of Representatives in its place.  It’s not even close. There’s no way this decision had anything to do with the law.

This is also a misuse of the solicitor general’s office.  The solicitor general’s job is to argue the administration’s opinion in court, not to render judgements on the law.  Rendering judgements on the law is the job of the Office of Legal Counsel, which they did, twice, in two different administrations.

UPDATE: Jonah Goldberg notes that the solicitor general’s office recently argued before the Supreme Court that book banning is constitutional, which indicates that they are a particularly bad judge of what is constitutional.

UPDATE: Jonathan Adler expands on the inappropriateness of going to the solicitor general’s office for a second opinion when you don’t like the first.  Adler notes that Holder’s action violates a recent paper, Principles to Guide the Office of Legal Counsel, written by President Obama’s OLC nominee and nineteen other former OLC attorneys.

UPDATE: Andy McCarthy notes a double standard in Holder’s application of the defensibility standard:

When enforcement of a patently defensible statute would undermine the progressive agenda, the statute goes under the bus; when enforcement of a patently unconstitutional statute would further the progressive agenda, the presumption of validity lives and the statute need only pass the laugh-test (though I don’t think the D.C. voting-rights bill meets even that low bar). 

But other than that, Holder would never play politics with the law, nosiree.

Reuters reports:

The U.S. Justice Department asked a federal judge on Wednesday to throw out the corruption conviction of former Alaskan Senator Ted Stevens because prosecutors withheld helpful evidence from his lawyers.

Attorney General Eric Holder said he decided to abandon the case against Stevens, a Republican who narrowly lost his bid for re-election last year amid heavy publicity over the case, after a review showed prosecutors did not turn over to the defense information that might have helped Stevens’ case.

(Via Instapundit.)

Shall we re-do the election now?

The Justice Department’s Office of Legal Counsel is important because it interprets the law for the executive branch before the fact.  That is, the OLC’s purpose is not to litigate to defend the administration’s actions, but to ensure that it obeys the law in the first place.

The OLC has been particularly controversial in recent years because the OLC issued a number of memos that have been construed as expanding presidential power.  (This may be true; I don’t have the legal background to say.)  Most notorious was the so-called “torture memo” which sought to establish what constitutes torture and is therefore illegal.  (Many disagreed with the memo’s conclusions, and construed it as justifying torture.  The memo was later rescinded, and new legislation later clarified the law somewhat.)

Dawn Johnsen is President Obama’s nominee for the Justice Department’s Office of Legal Counsel.  Johnsen was an outspoken critic of expanding presidential power during the Bush administration, but was a strong proponent of expanding presidential power during the Clinton administration, explains Andrew McCarthy:

Particularly rich is Johnsen’s diatribe against Bush’s purportedly outlandish claim of power to ignore statutes that encroach on executive authority. When Johnsen served in the Clinton administration (which invented extraordinary rendition, detained Cuban refugees without trial at Guantanamo Bay, conducted warrantless national-security searches, and attacked a foreign country without congressional authorization), OLC’s official position was that “the President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.” The office opined that several statutes (including privacy provisions in the federal wiretap law) could not bind the president, and Johnsen herself authored a 1997 OLC opinion concluding that presidents were above consumer-credit-disclosure laws. In that case, she broadly asserted that “statutes that do not expressly apply to the President must be construed as not applying to him if such application would involve a possible conflict with his constitutional prerogatives.”

So, Johnsen isn’t so much an opponent of expanded presidential power, as she is an opponent of expanded Republican presidential power.

In a similar fashion, she opposes politicization of the justice department by the right, but supports it (explicitly!) by the left:

A parallel hypocrisy is illustrated by Johnsen’s rants about how the Bush administration “politicized” the Justice Department. Her solution to this problem: Politicize the Justice Department. She argues that job applicants who may have been passed over by the Bush administration for holding leftist political views should get “special consideration” in DOJ hiring but, at the same time, maintains that nominees for the federal judiciary should be rejected out of hand if they embrace constitutional originalism or are members of the judicially conservative Federalist Society

Not only is Johnsen a partisan gunslinger, but she also has a history of making outlandish legal arguments.  In 1989, as part of an argument for government funding of abortion, she infamously argued that unwanted pregnancy is tantamount to slavery, and restrictions on abortion violate the 13th Amendment.  This year, when questioned by the Senate Judiciary Committee about that argument, she denied that she had ever made it, until her words were quoted back to her.

Most of the OLC’s opinions are never tested in court, so it’s important that it be giving sober, non-partisan legal advice.  With her record, it seems unlikely that Johnsen will give advice that is either sober or non-partisan.  It’s not even clear that she wants to.

It seems obvious to me that the AIG bonuses confiscation bill is unconstitutional.  The Constitution says:

No bill of attainder or ex post facto Law shall be passed.

The dictionary defines bill of attainder:

a legislative act that imposes punishment without a trial

That’s exactly what the bill is, so it’s unconstitutional, right?  Well, I’m relying here on the plain meaning of the Constitution.  That, I suppose, is what lawyers call a “naive argument.”  To find out what the Constitution really means, you can’t look at its text, you have to look at centuries of case law.

The legal scholars seem split.  On the constitutional side, you have Laurence Tribe (last week) and Jack Balkin.  On the unconstitutional side, you have Laurence Tribe (this week), Erik Jensen, and Jonathan Adler.  (Via Instapundit, JustOneMinute, and Asymmetrical Information.)

The one thing everyone (except Congress) seems to agree on is this is terrible policy.  Not just because it would undercut Treasury’s ability to deal with the financial crisis, but because it’s a terrible precedent to say that the government can confiscate any income it thinks is too much.

The rush to do this, despite it obviously being a bad idea, is because the Democrats are exposed.  They made this happen, and now they need cover.

The increasing use of presidential signing statements began in the Reagan Administration and continued into the administrations that followed.  The primary historical use of signing statements was to point out constitutional problems and direct the executive branch in how to deal with them.  So has there been a great increase in unconstitutional legislation?  Quite possibly, but there is another reason why the use of signing statements has grown.

When interpreting the law, courts frequently go back to its legislative history to get a sense of its authors’ intent. This leads to an imbalance between the branches of government, because the legislative and judicial branches both get their say regarding the meaning of the law, but not the executive branch. To address that imbalance, Samuel Alito (then Deputy Assistant Attorney General) proposed in a 1986 memo (pdf) to expand the use of signing statements:

Our primary objective is to ensure that Presidential signing statements assume their rightful place in the interpretation of legislation. In the past, Presidents have issued signing statements when presented with bills raising constitutional problems. [Office of Legal Counsel] has played a role in this process, and the present proposal would not substantively alter that process.

The novelty of the proposal previously discussed by this Group is the suggestion that Presidential signing statements be used to address questions of interpretation. Under the Constitution, a bill becomes law only when passed by both houses of Congress and signed by the President (or enacted over his veto). Since the President’s approval is just as important as that of the House or Senate, it seems to follow that the President’s understanding of the bill should be just as important as that of Congress. Yet in interpreting statutes, both courts and litigants (including lawyers in the Executive branch) invariably speak of “legislative” or “congressional” intent. Rarely if ever do courts or litigants inquire into the President’s intent. Why is this so?

Part of the reason undoubtedly is that Presidents, unlike Congress, do not customarily comment on their understanding of bills. Congress churns out great masses of legislative history bearing on its intent–committee reports, floor debates, hearings. Presidents have traditionally created nothing comparable. Presidents have seldom explained in any depth or detail how they interpreted the bills they have signed. Presidential approval is usually accompanied by a statement that is often little more than a press release. From the perspective of the Executive Branch, the issuance of interpretive signing statements would have two chief advantages. First, it would increase the power of the Executive to shape the law. Second, by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history.

Alito accurately predicted that Congress would not take kindly to the proposal:

It seems likely that our new type of signing statement will not be warmly welcomed by Congress. The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction. In addition, and perhaps most important, Congress is likely to resent the fact that the President will get in the last word on questions of interpretation.

I’m not aware of an occasion in which an expanded signing statement has been tested in court, so it’s too soon to say whether Alito’s experiment has succeeded.

Three days ago, President Obama took a stand against signing statements:

President Obama tried to overturn his predecessor again on Monday, saying he will not use bill signing statements to tell his aides to ignore provisions of laws passed by Congress that he doesn’t like. . . Obama sent a two-page memo to department heads saying he would only raise constitutional issues in his signing statements and do so in “limited circumstances.” These statements “should not be used to suggest that the president will disregard statutory requirements on the basis of policy disagreements,” the memo said.

Bush’s tactics were not cited specifically. Obama also instructed agencies to consult Attorney General Eric Holder before relying on any previous signing statement as a basis for “disregarding, or otherwise refusing to comply with any provision of a statute.” . . .

In his memo, Obama asked aides to work out constitutional problems before Congress acts.

Michelle Boardman, a deputy assistant attorney general in the Bush administration, said the Bush White House tried to do just that. She said it is the executive branch’s responsibility to point out conflicts between newly passed laws and the Constitution.

Obama “will discover for himself just how infrequently Congress shows any interest in removing unconstitutional provisions,” she said.

Boardman’s remark was prophetic, because President Obama issued his first signing statement just two days later:

President Barack Obama, sounding weary of criticism over federal earmarks, defended Congress’ pet projects Wednesday as he signed an “imperfect” $410 billion measure with thousands of examples. . . On another potentially controversial matter, the president also issued a “signing statement” with the bill, saying several of its provisions raised constitutional concerns and would be taken merely as suggestions. He has criticized President George W. Bush for often using such statements to claim the right to ignore portions of new laws, and on Monday he said his administration wouldn’t follow those issued by Bush unless authorized by the new attorney general.

(Via Instapundit.)

So the Obama Administration’s position on substantive signing statements is identical to that of the Bush Administration (and others as far back as the Monroe Administration), to use them to identify constitutional problems in legislation and to direct the executive branch how to deal with them.  The only difference is a new president bringing new ideology.

This is expected.  Regardless of what they say on the campaign trail, presidents invariably are fans of presidential power.  Senator Obama may have chafed at presidential signing statements, but President Obama is going to use them all he likes.  The only surprising thing is that anyone would be surprised.

There is something new here, though.  Before issuing his first signing statement, President Obama did issue a memo overturning all previous signing statements.  As far as I know, that hadn’t been done before. It makes sense, though, from Obama’s point of view.  He need not support his predecessors’ executive power in order to exercise his own.  Posturing aside, all his memo Monday did was order the executive branch to follow his signing statements, but not to follow anyone else’s without checking first.

In this, Obama has surely set a new precedent.  The next Republican president no doubt will issue a similar memo overturning all previous signing statements.  On that day, there will be much hue and cry from Democrats, and the signing statement will become bad again.  Until the next Democrat.

POSTSCRIPT: More in the next post.

Joe “the plumber” Wurzelbacher is suing three Ohio officials for illegally searching his records after he rose to prominence for asking Barack Obama an inconvenient question during the presidential campaign. One might think that he has a slum-dunk case, since the Ohio Inspector-General already determined that the search was illegitimate, but under the doctrine of official immunity it’s not so clear.  They might be held to be immune from lawsuits for any misconduct perpetrated in an official capacity.

I’m also surprised that the suit targets specifically those who searched Wurzelbacher’s records at the Department of Job and Family Services. Five other Ohio departments investigated him, including the Ohio Attorney General’s office.  Why aren’t they also being sued?

(Previous post.)

A reader sends me this, and asks “Am I dreaming?”:

The Obama administration is legally defending a last-minute rule enacted by President George W. Bush that allows concealed firearms in national parks, even as it is internally reviewing whether the measure meets environmental muster.

In a response Friday to a lawsuit by gun-control and environmental groups, the Justice Department sought to block a preliminary injunction of the controversial rule. The regulation, which took effect Jan. 9, allows visitors to bring concealed, loaded guns into national parks and wildlife refuges; for more than two decades they were allowed in such areas only if they were unloaded or stored and dismantled.

No, not dreaming, but this hardly indicates a major turnaround in President Obama’s position on gun control.  The legal grounds on which this rule is being attacked are extraordinarily flimsy; they are claiming that the environmental impact assessment was inadequate.  Everyone knows that this is not about the environment, it’s about gun control.  I wouldn’t be at all surprised if the Administration eventually reverses the rule, but it’s going to want a non-preposterous basis for doing so.