Those of us who believe that the Constitution means what it says have been arguing since the late 1970s that congressional efforts to strengthen national security by weakening personal liberty are unconstitutional, un-American, and ineffective. The Foreign Intelligence Surveillance Act (FISA), which Congress passed in the aftermath of President Richard Nixon's use of the CIA and the FBI to spy on his political opponents, has unleashed demons that now seem beyond the government's control and are more pervasive than anything Nixon could have dreamed of.
This realization came to a boiling point last weekend when President Donald Trump accused former President Barack Obama of monitoring his telephone calls during the 2016 presidential election campaign. Can a U.S. president legally spy on a political opponent or any other person in America without any suspicion, probable cause or warrant from a judge? In a word, yes.
Here is the back story.
The president can order the National Security Agency (NSA) to spy on anyone at any time for any reason, without a warrant. This is profoundly unconstitutional but absolutely lawful because it is expressly authorized by the FISA statute.
All electronic surveillance today, whether ordered by the president or authorized by a court, is done remotely by accessing the computers of every telephone and computer service provider in the United States. The NSA has 24/7/365 access to all the mainframe computers of all the telephone and computer service providers in America.
The service providers are required by law to permit this access and are prohibited by law from complaining about it publicly, challenging it in court, or revealing any of its details. In passing these prohibitions, Congress violated the First Amendment, which prohibits it from infringing upon the freedom of speech.
The fruits of electronic surveillance cannot be used in criminal prosecutions but can be shared with the president. If they are revealed publicly, the revelation constitutes computer hacking, a federal crime. Nevertheless, some of what was overheard from telephone conversations between the Russian ambassador to the U.S. and former Lt. Gen. Michael Flynn, Trump's former national security adviser, was revealed to the public — a revelation that profoundly disturbed the White House and many in the intelligence community and constituted a crime.
The original purpose of FISA was to place the judiciary as an intermediary between the nation's spies and the foreign agents we all know are among us. The theory was that the NSA would first need to demonstrate to a secret court probable cause that the target of the spying is an agent of a foreign power and this would restrain the NSA from spying on ordinary Americans. This probable cause of foreign agency was a dramatic congressional rejection of the constitutional standard — namely, probable cause of crime — for the issuance of warrants. Foreign agency is not a crime.
This congressional rejection of constitutional norms began the slippery slope in which the foreign agency standard has morphed by legislation and by secret interpretations of the Foreign Intelligence Surveillance Court to probable cause of foreign personhood to probable cause of talking to a foreign person to probable cause of being able to talk to a foreign person to — dropping the probable cause standard altogether — anyone who speaks to anyone else who could speak to a foreign person.
This Orwellian and absurd expansion was developed by spies and approved by judges on the FISA court. The NSA argued that it would be more efficient to spy on everyone in the United States than to isolate bad people, and the court bought that argument.
Hence, FISA warrants do not name particular people or places as their targets as the Constitution requires. Rather, they merely continue in place of the previous warrants, which encompass everyone in the country. FISA warrants are general warrants, allowing intelligence agents to listen to whomever they wish and retain whatever they hear. General warrants are expressly prohibited by the Fourth Amendment, which requires that all warrants for all purposes be based on probable cause of crime and particularly describe the person or thing to be seized — e.g., a conversation — or the place to be searched.
Even though the NSA already has the legal, though unconstitutional, authority to capture any phone conversation or computer keystroke it wishes, its 60,000 agents lack the resources to listen to all conversations or read all electronic communications in real time. But it does capture the digital versions of all computer keystrokes made in or to the U.S. and all conversations had within the U.S. or involving someone in the U.S.; it has been doing so since 2005. And it can download any conversation or text or email at will.
That's why the recent argument that Obama ordered the NSA to obtain a FISA warrant for Trump's telephone calls and a judge issued a warrant for them is nonsense. The NSA already has a digital version of every call Trump has made or received since 2005. Because the NSA — which now works for Trump — is a part of the Defense Department, it is subject to the orders of the president in his capacity as commander in chief. So if the commander in chief wants something that a military custodian already has or can create — such as a transcript of an opponent's conversations with political strategists during a presidential campaign — why would he bother getting a warrant? He wouldn't.
All of this leads to information overload — so much material that the communications of evil people are safely hidden within the mountain of data from the rest of us. The NSA captures the digital equivalent — if printed — of 27 times the contents of the Library of Congress every year.
All of this also leads to the monstrous power of the NSA to manipulate, torment and control the president by selectively concealing and selectively revealing data to him. The Constitution does not entrust such power to anyone in government. But Congress has given it.
All of this also substantially impairs a fundamental personal liberty, the right to be left alone — a right for which we seceded from Great Britain, a right guaranteed by the Fourth Amendment and a right for which we fought wars against tyrants who we feared would take it from us.
Yet after we won those wars, we permitted our elected representatives to crush that right. Those faithless representatives have created a monster that has now turned on us.
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]]>Last week, President Donald Trump erupted with fury over a series of public revelations of private facts — some top-secret and some office gossip — that painted him and his White House in a bad light. The president ordered the FBI to investigate some of these so-called leaks and his own White House counsel to investigate others.
There are numerous issues related to the leaking of government information. They include the leaking of classified information, the leaking of confidential communications and the publishing of leaked material.
Here is the back story.
It is a felony to reveal classified information to any person who lacks a classified clearance, as some in the intelligence community have recently done to embarrass, control, intimidate or infuriate the president. The National Security Agency employs over 60,000 domestic spies, but they work in compartmentalized areas. Thus, not all of them have access to all the data collected by all of their colleagues. Only about 100 spies have access to the top-secret data that was leaked about the president.
When members of the intelligence community leaked lurid allegations about the future president's alleged behavior in a Moscow hotel room, which he has vehemently denied, and when some leaked the partial transcripts of telephone conversations between retired Lt. Gen. Michael Flynn and the Russian ambassador to the U.S. — shortly before Flynn became the president's national security adviser — and when some leaked an intelligence report that contradicted the president's publicly stated conclusions on the likelihood of dangerous people immigrating to the U.S. from the seven predominately Muslim countries named in the president's now enjoined temporary travel ban, one can understand the presidential anger.
And leaks are a two-sided coin. Adding to Trump's woes caused by too much revealing is the other side of that coin — too much concealing. This comes into play when one has a duty to reveal. That duty arises from the legal obligation of spies to pass on to their superiors — and ultimately to the president — all of the material information they have acquired about America's friends and enemies.
Selectively concealing and revealing this type of intelligence data, thereby manipulating the presidential judgment, when one has a duty to reveal substantially all of it is a form of interference with a governmental function — namely, the president's exercise of his judgment — and that is a felony.
As if all this were not enough for a young presidency to deal with, Trump finds himself with a White House staff leaking to the press Oval Office gossip about confidential conversations from within the White House that the participants in those conversations had every reason to believe would not be made public. This resulted in the temporary seizure of government-issued cellphones held by a dozen or so staffers so their bosses could learn whether any had spoken to the press. The cellphones episode was itself leaked, apparently by a participant not happy with it.
What's going on here?
These events are either the growing pains of a new presidential administration, still partially staffed by those loyal to former President Barack Obama, or the product of sinister forces from people attempting to exercise their own judgment about America's foes by frustrating and manipulating the judgment of the president — whom the voters elected to exercise the constitutional powers to make those judgment calls. The latter situation would be perilous, as it would mean we have unelected, unaccountable, and unnamed people pulling the levers of power in the field of national security.
The leaks of confidential communications from within the White House may be a pain in the neck for the president, but they are not criminal. And generally, a boss can look at an employee's cellphone, as long as the employer of the boss and the employee owns the phone — except when the employer is the government. The Fourth Amendment insulates government employees from governmental reach into its employees' cellphones. Absent an employee's waiving his Fourth Amendment rights, the government may not seize work-related (governmental) or personal phones without a search warrant.
Can the media publish these leaks?
In a word, yes. The media may publish anything that is of material interest to the public, notwithstanding its level of secrecy or how it was acquired. The First Amendment — which the courts have construed to treat the media as the eyes and ears of the public — protects absolutely the publication by the media of leaked data, whether gossip or top-secret, that the public wants to hear.
The courts have also ruled that everything about the president is of material public interest — meaning no criminal or civil action can be taken against the media for the publication of any leaked materials that reflect on the president as a person or as a government official. When The New York Times published a probably stolen copy of Trump's tax returns, it did so with impunity.
One can see why Trump rails against the press. Yet he has taken an oath to preserve, protect and defend the very constitutional principles that protect and liberate a free press from the anger of the government, no matter how well-grounded that anger may be. One of his predecessors who was savaged by the press, Thomas Jefferson, wrote that accountability and transparency in government are of such overriding value that he'd prefer newspapers without a government to a government without newspapers.
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]]>Last week, The Wall Street Journal revealed that members of the intelligence community — part of the deep state, the unseen government within the government that does not change with elections — now have acquired so much data on everyone in America that they can selectively reveal it to reward their friends and harm their foes. Their principal foe today is the president of the United States.
Liberty is rarely lost overnight. The wall of tyranny often begins with benign building blocks of safety — each one lying on top of a predecessor — eventually collectively constituting an impediment to the exercise of free choices by free people, often not even recognized until it is too late.
Here is the back story.
In the pre-Revolutionary era, British courts in London secretly issued general warrants to British government agents in America. The warrants were not based on any probable cause of crime or individual articulable suspicion; they did not name the person or thing to be seized or identify the place to be searched. They authorized agents to search where they wished and seize what they found.
The use of general warrants was so offensive to our Colonial ancestors that it whipped up more serious opposition to British rule and support for the revolutionaries than the "no taxation without representation" argument did. And when it came time for Americans to write the Constitution, they prohibited general warrants in the Fourth Amendment, the whole purpose of which was to guarantee the right to be left alone by forcing the government to focus on bad guys and prohibit it from engaging in fishing expeditions. But the fishing expeditions would come.
In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which was intended to rein in the government spying on Americans that had been unleashed by the Nixon administration. FISA established a secret court and permitted it to issue warrants authorizing spying on agents of foreign governments when physically present in the United States.
People born in foreign countries who are here for benevolent or benign or even evil purposes have the same constitutional protections as those of us born here. That's because the critical parts of the Constitution that insulate human freedom from the government's reach protect "persons," not just citizens. But FISA ignored that.
And FISA was easy for the government to justify. It was a pullback from Richard Nixon's lawlessness. It required the feds to seek a warrant from federal judges. The targets were not Americans. Never mind, the argument went, that FISA has no requirement of showing any probable cause of crime or even articulable suspicion on the part of the foreign target; this will keep us safe. Besides, the government insisted, it can't be used against Americans.
That argument was bought by presidents, members of Congress and nearly all federal courts that examined it. We don't know whether the authors of this scheme really wanted federal spies to be able to spy on anyone at will, but that is where we are today. Through secret courts whose judges cannot keep records of their own decisions and secret permissions by select committees of Congress whose members cannot tell their constituents or other members of Congress what they have learned in secret, FISA has morphed so as to authorize spying down a slippery slope of targets, from foreign agents to all foreigners to anyone who communicates with foreigners to anyone capable of communicating with them.
The surveillance state regime today permits America's 60,000 military and civilian domestic spies to access in real time all the landline and mobile telephone calls and all the desktop and mobile device keystrokes and all the digital data created and used by anyone in the United States. The targets today are not just ordinary Americans; they are justices on the Supreme Court, military brass in the Pentagon, agents in the FBI, local police in cities and towns, and the man in the Oval Office.
The British system that arguably impelled our secession in 1776 is now here on steroids.
Enter the outsider as president. Donald Trump has condemned the spying and leaking, as he is a victim of it. While he was president-elect, the spies told him they knew of his alleged misbehaviors — vehemently denied — in a Moscow hotel room. Last week, his White House staff was shaken by what the spies did with what they learned from a former Trump aide.
Trump's former national security adviser, retired Lt. Gen. Michael Flynn, himself a former military spy, spoke to the Russian ambassador to the United States in December via telephone in Trump Tower. It was a benign conversation. He knew it was being monitored, as he is a former monitor of such communications. But he mistakenly thought that those who were monitoring him were patriots as he is. They were not.
They violated federal law by revealing in part what Flynn had said, and they did so in a manner to embarrass and infuriate Trump.
Why would they do this? Perhaps because they feared Flynn's being in the White House, since he knows the power and depth of the deep state. Perhaps to send a message to Trump because he once compared American spies to Nazis. Perhaps because they believe that their judgment of the foreign dangers America faces is superior to the president's. Perhaps because they hate and fear the outsider in the White House.
The chickens have come home to roost. In our misguided efforts to keep the country safe, we have neglected to keep it free. We have enabled a deep state to become powerful enough to control a powerful president. We have placed so much data and so much power in the hands of unelected, unaccountable, opaque spies that they can use it as they see fit — even to the point of committing federal felonies. Now some have boasted that they can manipulate and thus control the president of the United States by selectively revealing and concealing what they know about anyone, including the president himself.
This is a perilous state of affairs, brought about by the maniacal passion for surveillance spawned under George W. Bush and perfected under Barack Obama — all with utter indifference to the widespread constitutional violations and permanent destruction of personal liberties.
This is not the government the Framers gave us. But it is one far more dangerous to human freedom than the one from which they seceded in 1776.
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]]>Over the past weekend, Trump administration officials offered harsh criticisms of the judicial interference with the enforcement of the president's immigration order. The Jan. 27 order suspended the immigration privileges of all refugees from Syria indefinitely and all immigrants from seven designated countries for 90 days.
After a federal district judge in Seattle enjoined the federal government from enforcing the executive order and the 9th U.S. Circuit Court of Appeals upheld that injunction, President Donald Trump's folks pounced.
They argued that we have an imperial judiciary that thinks it has the final say on public policy — one that will freely second-guess the president in areas that are exclusively his under the Constitution.
Here is the back story.
The Constitution provides for essentially a shared responsibility in the creation of laws. Congress passes bills, and the president signs them into law. Sometimes bills become laws over the president's veto. Bills are often proposed by presidents and disposed of by Congress.
When challenges to the meaning or application of the laws are properly made, the judiciary decides what the laws mean and whether they are consistent with the Constitution. My point is that there are substantial roles for the legislative and executive branches in the process of lawmaking and that there is an exclusive role for the judiciary in interpreting the meaning of the law.
When it comes to articulating and carrying out the foreign policy of the nation, the president is superior to the other branches. Though the House of Representatives and the Senate appropriate money for foreign policy expenses and the Senate ratifies treaties and confirms ambassadors, the president alone determines who our friends and enemies are. Congress has given him many tools with which to make and carry out those determinations.
Among those tools is substantial discretion with respect to immigration. That discretion permits the president, on his own, to suspend the immigration privileges of any person or group he believes poses a danger to national security. Though the effect of his suspension may, from time to time, fall more heavily on one religious group, the purpose of that suspension may not be to target a religious group.
Can an immigrant who has been banned from entering the United States challenge the ban?
In a word, yes. Once an immigrant has arrived here, that person has due process rights (the right to know the law, to have a hearing before a fair and neutral authority, and to appeal to a superior neutral and fair authority). This is so because the Constitution protects all persons.
The challenge to the president's exercise of his discretion cannot be based on a political disagreement with him or an objection to the inconveniences caused by the enforcement; it can only be based on an alleged constitutional violation. In the Seattle case, the states of Washington and Minnesota had sued the president and alleged that he had issued his Jan. 27 order to target Muslims, many of whom study or work at state universities.
Can the courts hear such a case?
In a word, yes; but they must do so with intellectual honesty and political indifference. The judiciary is an independent branch of the government, and it is co-equal to the president and the Congress. It is answerable to its own sense of scrupulous intellectual honesty about the Constitution. It is not answerable to the people. Yet in return for the life tenure and unaccountability its members enjoy, we expect political indifference — that judges' decisions shall not be made in order to produce their own politically desired outcomes.
It is the job of the judiciary to say what the Constitution means, say what the statutes mean and determine with finality whether a governmental actor used governmental power consistent with the Constitution and the statutes. When the courts do this with intellectual honesty and indifference to the political outcome, they are doing their job, and we should accept the outcome.
Must the president justify to the satisfaction of judges his exercise of discretion in suspending immigration privileges?
In a word, sometimes; he only needs to do so when a fundamental liberty, such as the free exercise of religion, is at stake — and not when state universities might temporarily lose students or faculty or the enrichment that those from foreign lands often bring.
This can be a dangerous sea for judges to navigate because judicially compelling the president to justify his development of the nation's foreign policy might expose that development to unwanted eyes and ears who could cause the nation ill in perilous times.
Suppose intelligence officials told the president they believe that Islamic State-inspired lone wolves are about to enter the United States from three of the seven countries but some of them have multiple passports and may leave from one of the other four countries. That would clearly justify the president's executive order, but it would be foolhardy for him to explain in a court how he came to know that and detrimental to then have to await a court's approval while the evil-doers arrive here.
In our democracy, the president and members of Congress make promises and then convince us that they have kept them so we will re-elect them. The whole purpose of an independent judiciary is to be anti-democratic — to protect the life, liberty, and property of all people from the unconstitutional behavior of the two political branches of the government. When the judiciary does this, it is not being imperial; it is doing what the Constitution requires.
If this were not the case, then nothing would prevent the political branches from trampling the rights of an unpopular minority.
The late Justice Robert Jackson once famously quipped that the Supreme Court is infallible because it is final; it is not final because it is infallible. But that infallibility — if you will — must be tempered by fidelity to the rule of law, which demands the intellectual honesty and political indifference that the Constitution requires for the personal freedoms of all of us to survive.
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]]>Last week, in a public courtroom in the federal courthouse in Seattle, the states of Washington and Minnesota — after suing President Donald Trump, alleging injury caused by his executive order that suspended the immigration of all people from seven foreign countries — asked a federal judge to compel the president and all those who work for him to cease enforcing the order immediately. After a brief emergency oral argument, the judge signed a temporary restraining order, which barred the enforcement of the president's order everywhere in the United States.
The president reacted with anger, referring to the judge as a "so-called judge," and immigrant rights groups praised the judicial intervention as a victory for the oppressed. The president meant, I think, that Judge James L. Robart had not acted properly as a judge by second-guessing him — that he had acted more like a politician; and the immigrant rights groups felt, I think, that the United States was once again a beacon of hope for refugees.
Here is the back story.
A 1952 federal statute permits the president to suspend the immigration status of any person or group whose entry into the United States might impair public health or safety or national security. Trump exercised that authority in accordance with the 1952 law when he signed his Jan. 27 order banning all immigration from the seven named countries.
When the president exercises powers granted to him by the Constitution or federal statues or when Congress passes bills, one cannot simply sue the government in federal court because one does not like what has been done. That is so because the Constitution has preconditions for a lawsuit in federal court. One of those preconditions is what lawyers and judges call "standing." Standing means that the plaintiff has alleged and can most likely show that the defendant has caused the plaintiff an injury in fact, distinct from all others not in the case.
Hence, it is curious that the plaintiffs in the Seattle case were not people whose entry had been barred by Trump's order but rather the governments of two states, each claiming to sue in behalf of people and entities resident or about to be resident in them. The court should have dismissed the case as soon as it was filed because of long-standing Supreme Court policy that bars federal litigation alleging harm to another and permits it only for the actual injury or immediate likelihood of injury to the litigant.
Nevertheless, the Seattle federal judge heard oral argument on the two states' emergency application for a temporary restraining order against the president. During that oral argument, the judge asked a lawyer for the Department of Justice (DOJ) how many arrests of foreign nationals from the seven countries singled out by the president for immigration suspension there have been in the United States since 9/11. When the DOJ lawyer said she did not know, the judge answered his own question by saying, "None."
He was wrong.
There have been dozens of people arrested and convicted in the United States for terrorism-related crimes since 9/11 who were born in the seven countries. Yet even if the judge had been correct, his question was irrelevant — and hence the answer meaningless — because it does not matter to a court what evidence the president relied on in this type of order. This is the kind of judicial second-guessing — substituting the judicial mind for the presidential mind — that is impermissible in our system. It is impermissible because the Constitution assigns to the president alone nearly all decision-making authority on foreign policy and because Congress has assigned to the president the power of immigration suspension as a tool with which to implement foreign policy.
These rules and policies — the requirement of standing before suing and the primacy of the president in making foreign policy — stem directly from the Constitution. Were they not in place, then anyone could sue the government for anything and induce a federal judge to second-guess the president. That would convert the courts into a super-legislature — albeit an unelected, unaccountable, opaque one.
I am not suggesting for a moment that the courts have no place here. Rather, they have a vital place. It is to say what the Constitution means, say what the statutes mean and determine whether the government has exercised its powers constitutionally and legally. It is not the job of judges to decide whether the government has been smart or prudent, though.
One of the arguments made by the state of Washington to explain why it had standing was laughable. Washington argued that corporations located in Washington would suffer the irreparable loss of available high-tech-qualified foreign employees if the ban were upheld. Even if this were likely and even if it were provable, it would not establish injury in fact to the government of Washington. When pressed to reveal what entity Washington was trying to protect, it enumerated a few familiar names, among which was Microsoft.
Microsoft? The government of the state of Washington is suing to protect Microsoft?! Microsoft could buy the state of Washington if Starbucks were willing to sell it.
I jest to make a point. The rule of law needs to be upheld. Carefully paying attention to constitutional procedure protects personal freedom. In similar environments, the late Justice Antonin Scalia often remarked that much of what the government does is stupid but constitutional and that the courts' only concern is with the latter.
The DOJ is now challenging the Seattle restraining order in the 9th U.S. Circuit Court of Appeals, and this case may make its way to the Supreme Court. Will federal judges be faithful to the rule of law? We shall soon find out.
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]]>Within four hours of becoming president of the United States, Donald Trump signed an executive order intended to limit immediately the effects of the Patient Protection and Affordable Care Act (Obamacare) in ways that are revolutionary.
With the stroke of a pen, the president assaulted the heart of the law that was the domestic centerpiece of his predecessor's administration. How did this happen? How can a U.S. president, who took an oath to enforce the laws faithfully, gut one of them merely because he disagrees with it?
Here is the back story.
When Obamacare went through Congress in 2010, all Democrats in Congress supported it and all congressional Republicans were opposed. The crux of their disagreement was the law's command that everyone in the United States obtain and maintain health insurance — a command that has come to be known as "the individual mandate."
Republicans argued that Congress was without the authority to compel people to enter the marketplace by purchasing a product — that such decisions should be freely made by individuals and that that freedom was protected from governmental interference by the Constitution. Democrats argued that the commerce clause of the Constitution, which permits Congress to regulate commerce among the states, also permits it to compel commercial activity on the part of individuals who make up a highly regulated component of interstate commerce.
To ensure compliance with the individual mandate, the law provided that the IRS would collect the fair market value of a bare-bones insurance policy from those who did not obtain and maintain one. The government would then take that money and purchase a health insurance policy for that individual who rejected the law's command.
Though Congress did not call it a tax and the government's lawyers uniformly and consistently denied in all courts where it was challenged that it was a tax and President Barack Obama rejected the idea that it was a tax and even the lawyers for the challengers denied it was a tax, a 5-4 majority in the Supreme Court characterized the money collected by the IRS from non-compliant individuals as a tax.
This is profoundly significant for constitutional purposes because though Congress cannot regulate anything it wants, Congress can tax anything it wants, as long as the tax falls equally on those in the class of people who are paying it. This unheard-of characterization of a non-tax as a tax was necessary to salvage Obamacare before the high court because a different 5-4 majority in the same case ruled that the Republican congressional argument was essentially correct — that the commerce clause does not empower Congress to compel commercial activity.
All of this has been debated loud and long since the law was enacted in 2010, validated by the Supreme Court in 2012, and came into Trump's crosshairs in the Republican presidential primaries and again in the general election campaign.
Trump argued that the government cannot compel commercial activity, even as part of a large regulatory scheme, because the Constitution protects everyone's right to purchase a lawful good or not to purchase one. He also asserted that Obamacare does not make economic sense because its regulation of the practice of medicine and its administration of health insurance have resulted in a diminution of choices for consumers, which in turn has raised premiums, as well as deductibles, and chased primary care physicians from the marketplace. The Obama mantra that you could keep your doctor and your health insurance under Obamacare proved to be patently false, Trump argued.
When Trump promised that as president — on "day one" — he would begin to dismantle Obamacare, some Republicans, many members of the press and most Democrats laughed at him. They are laughing no longer because the first executive order he signed on Jan. 20 directed those in the federal government who enforce Obamacare to do so expecting that it will soon not exist.
He ordered that regulations already in place be enforced with a softer, more beneficent tone, and he ordered that no penalty, fine, setoff or tax be imposed by the IRS on any person or entity who is not complying with the individual mandate, because by the time taxes are due on April 15, the IRS will be without authority to impose or collect the non-tax tax, as the individual mandate will no longer exist. Why take money from people that will soon be returned?
Then he ordered a truly revolutionary act, the likes of which I have never seen in the 45 years I have studied and monitored the government's laws and its administration of them. He ordered that when bureaucrats who are administering and enforcing the law have discretion with respect to the time, place, manner, and severity of its enforcement, they should exercise that discretion in favor of individuals and against the government.
This is radical coming from any president in the modern era of government-can-do-no-wrong. It is far more Thomas Jefferson, the small-government champion with whom Trump has never been associated, than it is Theodore Roosevelt, the super-regulator whom Trump has stated he admires. It recognizes the primacy and dignity of the individual and the fallibility of the state. It acknowledges the likely demise of Obamacare. It is utterly without precedent since Jefferson's presidency.
Trump's revolutionary act is a breeze of freedom on a sea of regulation. It recognizes something modern governments never admit — that they can be and have been wrong. It is exactly as Trump promised.
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]]>On Jan. 3, outgoing Attorney General Loretta Lynch secretly signed an order directing the National Security Agency — America's 60,000-person-strong domestic spying apparatus — to make available raw spying data to all other federal intelligence agencies, which then can pass it on to their counterparts in foreign countries and in the 50 states upon request. She did so, she claimed, for administrative convenience. Yet in doing this, she violated basic constitutional principles that were erected centuries ago to prevent just what she did.
Here is the back story.
In the aftermath of former President Richard Nixon's abusive utilization of the FBI and CIA to spy on his domestic political opponents in the 1960s and '70s — and after Nixon had resigned from office in the wake of all that — Congress passed the Foreign Intelligence Surveillance Act (FISA), which created a secret court that was charged with being the sole authority in America that can authorize domestic spying for non-law enforcement purposes.
The standard for a FISA court authorization was that the subject of the spying needed to be a foreign person in the United States who was an agent of a foreign power. It could be a foreign janitor in a foreign embassy, a foreign spy masquerading as a diplomat, even a foreign journalist working for a media outlet owned by a foreign government.
The American spies needed a search warrant from the FISA court. Contrary to the Constitution, the search warrant was given based not on probable cause of crime but rather on probable cause of the status of the person as an agent of a foreign power. This slight change from "probable cause of crime" to "probable cause of foreign agency" began the slippery slope that brought us to Lynch's terrible order of Jan. 3.
After the Foreign Intelligence Surveillance Act, numerous other statutes were enacted that made spying easier and that continued to erode the right to be left alone guaranteed by the Fourth Amendment. The Patriot Act permitted FBI agents to write their own search warrants for business records (including medical, legal, postal and banking records), and amendments to FISA itself changed the wording from probable cause "of foreign agency" to probable cause of being "a foreign person" to all Americans who may "communicate with a foreign person."
As if Americans were children, Congress made those sleight-of-hand changes with no hoopla and little serious debate. Our very elected representatives — who took an oath to preserve, protect, and defend the Constitution — instead perverted it.
It gets worse.
The recent USA Freedom Act permits the NSA to ask the FISA court for a search warrant for any person — named or unnamed — based on the standard of "governmental need." One FISA court-issued warrant I saw authorized the surveillance of all 115 million domestic customers of Verizon. The governmental need standard is no standard at all, as the government will always claim that what it wants, it needs.
All these statutes and unauthorized spying practices have brought us to where we were on Jan. 2 — namely, with the NSA having a standard operating procedure of capturing every keystroke on every computer and mobile device, every telephone conversation on every landline and cellphone, and all domestic electronic traffic — including medical, legal and banking records — of every person in America 24/7, without knowing of or showing any wrongdoing on the part of those spied upon.
The NSA can use data from your cellphone to learn where you are, and it can utilize your cellphone as a listening device to hear your in-person conversations, even if you have turned it off — that is, if you still have one of the older phones that can be turned off.
Notwithstanding all of the above gross violations of personal liberty and constitutional norms, the NSA traditionally kept its data — if printed, enough to fill the Library of Congress every year — to itself. So if an agency such as the FBI or the DEA or the New Jersey State Police, for example, wanted any of the data acquired by the NSA for law enforcement purposes, it needed to get a search warrant from a federal judge based on the constitutional standard of "probable cause of crime."
Until now.
Now, because of the Lynch secret order, revealed by The New York Times late last week, the NSA may share any of its data with any other intelligence agency or law enforcement agency that has an intelligence arm based on — you guessed it — the non-standard of governmental need.
So President Barack Obama, in the death throes of his time in the White House, has delivered perhaps his harshest blow to constitutional freedom by permitting his attorney general to circumvent the Fourth Amendment, thereby enabling people in law enforcement to get whatever they want about whomever they wish without a showing of probable cause of crime as the Fourth Amendment requires. That amendment expressly forbids the use of general warrants — search where you wish and seize what you find — and they had never been a lawful tool of law enforcement until Lynch's order.
Down the slope we have come, with the destruction of liberty in the name of safety by elected and appointed government officials. At a time when the constitutionally recognized right to privacy was in its infancy, Justice Louis Brandeis warned all who love freedom about its slow demise. He wrote: "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."
Someday we will learn why Obama did this. I hope that when we do, it is at a time when we still have personal liberty in a free society.
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]]>Earlier this week, leaders of the Democratic National Committee and former officials of Hillary Clinton's presidential campaign made the startling allegation that the Russian government hacked into Clinton's colleagues' email accounts to tilt the presidential election toward Donald Trump. They even pointed to statements made by CIA officials backing their allegations.
President-elect Trump has characterized these claims as "ridiculous" and just an "excuse" to justify the Clinton defeat, saying they're also intended to undermine the legitimacy of his election. He pointed to FBI conclusions that the CIA is wrong. Who's right?
Here is the back story.
The American intelligence community rarely speaks with one voice. The members of its 17 publicly known intelligence agencies — God only knows the number of secret agencies — have the same biases, prejudices, jealousies, intellectual shortcomings, and ideological underpinnings as the public at large.
The raw data these agencies examine is the same. Today America's spies rarely do their own spying; rather, they rely on the work done by the National Security Agency. We know that from the Edward Snowden revelations. We also know from Snowden that the NSA can monitor and identify all digital communications within the United States, coming into the United States and leaving the United States. Hence, it would be foolhardy and wasteful to duplicate that work. There is quite simply no fiber-optic cable anywhere in the country transmitting digital data to which the NSA does not have full-time and unfettered access.
I have often argued that this is profoundly unconstitutional because the Fourth Amendment requires a judicially issued search warrant specifically describing the place to be searched or the thing to be seized before the government may lawfully invade privacy, and these warrants must be based on probable cause of criminal behavior on the part of the person whose privacy the government seeks to invade.
Instead of these probable cause-based, judicially issued search warrants, the government obtains what the Fourth Amendment was written to prohibit — general warrants. General warrants are not based on evidence of probable cause of criminal behavior; rather, they are based on government "need." This is an unconstitutional and absurd standard because the government will always claim that what it wants, it needs.
General warrants do not specifically describe the place to be searched or the thing to be seized; rather, they authorize the bearer to search where he wishes and seize whatever he finds. This is the mindset of the NSA — search everyone, all the time, everywhere — whose data forms the basis for analysis by the other agencies in the intelligence community.
In the case at hand, the CIA and the FBI looked at the same NSA-generated raw data and came to opposite conclusions. Needless to say, I have not seen this data, but I have spoken to those who have, and they are of the view that though there is evidence of leaking, there is no evidence whatsoever of hacking.
Leaking is the theft of private data and its revelation to those not entitled or intended to see it. Hacking is remotely accessing an operational system and altering its contents — for example, removing money from a bank account or contact information from an address book or vote totals from a candidate's tally. When Trump characterized the CIA claim that the Russians hacked the DNC and Clinton campaign emails intending to affect the outcome of the election as ridiculous, this is what he meant: There is no evidence of anyone's altering the contents of operational systems, but there is evidence — plenty of it — of leaking.
If hackers wanted to affect the outcome of the election, they would have needed to alter the operational systems of those who register voters and count votes, not those who seek votes.
During the final five weeks of the presidential campaign, WikiLeaks released tens of thousands of DNC and Clinton campaign emails to the public. WikiLeaks denies that its source was the Russian government, yet for the purposes of the DNC and Clinton campaign claims, that is irrelevant because whoever accessed these emails did not alter the operational systems of any of the targets; the accessor just exposed what was found.
We do not know what data the president-elect examined. Yet in six weeks, he will be the chief intelligence officer of the U.S., and he'll be able to assimilate data as he wishes and reveal what he wants. He should be given the benefit of the doubt because constitutionally, the intelligence community works for him — not for Congress or the American people.
Who did the leaking to WikiLeaks? Who had an incentive to defeat Clinton? Whose agents' safety and lives did she jeopardize when she was extremely careless — as the FBI stated — with many state secrets, including the identity and whereabouts of U.S. intelligence agents and resources?
The answer is obvious: It was the same intelligence community that cannot agree on the meaning of the raw data it has analyzed.
Someone leaked the Democrats' and the Clinton campaign's private work, and the government has a duty to find the person or entity that did so, even if it was one of the government's own. Though the truthful revelation of private facts may have altered some voters' attitudes, there is no evidence that it altered ballot totals. The law guarantees fair elections, not perfect ones.
Did the Russians hack Hillary Clinton? No. No one did. But some American intelligence agents helped WikiLeaks to expose much dirty laundry.
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]]>Last week, President-elect Donald Trump re-emphasized the approach he will take in enforcing the nation's immigration laws, which is much different from the manner of enforcement utilized by President Barack Obama. The latter pointedly declined to deport the five million undocumented immigrants in the United States who are the parents of children born here — children who, by virtue of birth, are American citizens. Trump has made known his intention to deport all undocumented people, irrespective of family relationships, starting with those who have committed crimes.
In response to Trump's stated intentions, many cities — including New York, Chicago, Los Angeles, and San Francisco — have offered sanctuary to those whose presence has been jeopardized by the president-elect's plan. Can they do this?
Here is the back story.
Under the Constitution, the president is the chief federal law enforcement officer in the land. Though the president's job is to enforce all federal laws, as a practical matter, the federal government lacks the resources to do that. As well, the president is vested with what is known as prosecutorial discretion. That enables him to place priority on the enforcement of certain federal laws and put the enforcement of others on the back burner.
Over time — and with more than 4,000 criminal laws in the United States Code — Congress and the courts have simply deferred to the president and permitted him to enforce what he wants and not enforce what he doesn't want. Until now.
Earlier this year, two federal courts enjoined President Obama — and the Supreme Court, in a tie vote, declined to interfere with those injunctions — from establishing a formal program whereby undocumented people who are the parents of natural-born citizens may lawfully remain here. It is one thing, the courts ruled, for the president to prioritize federal law enforcement; it is quite another for him to attempt to rewrite the laws and put them at odds with what Congress has written. It is one thing for the president, for humanitarian reasons or because of a lack of resources, to look the other way in the face of unenforced federal law. It is another for him to claim that by doing so, he may constitutionally change federal law.
Trump brilliantly seized upon this — and the electorate's general below-the-radar-screen disenchantment with it — during his successful presidential campaign by promising to deport all 13 million undocumented immigrants currently in the United States, though he later reduced that promise so as to cover only the two million among them who have been convicted in the United States of violating state or federal laws.
Enter the sanctuary cities. These are places where there are large immigrant populations, among which many are undocumented, yet where there is apparently not a little public sentiment and local governmental support for sheltering the undocumented from federal reach. Trump has argued that these cities are required to comply with federal law by actively assisting the feds — or at least not aggressively resisting them.
Thus the question: Are state and local governments required to help the feds enforce federal law? In a word: No.
The term "sanctuary cities" is not a legal term, but it has been applied by those in government and the media to describe municipalities that offer expanded social services to the undocumented and decline to help the feds find them — including the case of Chicago's offering undocumented immigrants money for legal fees to resist federal deportation. As unwise as these expenditures may be by cities that are essentially bankrupt and rely on federal largesse in order to remain in the black, they are not unlawful. Cities and towns are free to expand the availability of social services however they please, taking into account the local political climate.
Enter the Supreme Court. It has required the states — and thus the municipalities in them — to make social services available to everyone resident within them, irrespective of citizenry or lawful or unlawful immigration status. This is so because the constitutional command to the states of equal protection applies to all persons, not just to citizens. So the states and municipalities may not deny basic social services to anyone based on nationality or immigration status.
The high court has also prohibited the federal government from "commandeering" the states by forcing them to work for the feds at their own expense by actively enforcing federal law. As Ronald Reagan reminded us in his first inaugural address, the states formed the federal government, not the other way around. They did so by ceding 16 discrete powers to the federal government and retaining to themselves all powers not ceded.
If this constitutional truism were not recognized or enforced by the courts, the federal government could effectively eradicate the sovereignty of the states or even bankrupt them by forcing them to spend their tax dollars enforcing federal law or paying for federal programs.
Thus the Trump dilemma. He must follow the Constitution, or the courts will enjoin him as they have his predecessor. He cannot use a stick to bend the governments of sanctuary cities to his will, but he can use a carrot. He can ask Congress for legislative grants of funds to cities conditioned upon their compliance with certain federal immigration laws.
All of this is part of our constitutional republic. By dividing powers between the feds and the states — and by separating federal powers among the president, Congress, and the courts — our system intentionally makes the exercise of governmental power cumbersome by diffusing it. And since government is essentially the negation of freedom, the diffusion of governmental powers helps to maximize personal liberty.
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]]>"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion." — U.S. Supreme Court Justice Robert H. Jackson
Is flag burning protected speech? This old issue returned front and center earlier this week after President-Elect Donald Trump tweeted that he found it so reprehensible, it should be criminal. He even suggested a punishment — loss of citizenship or one year in jail. Is the president-elect correct? Can the government punish acts that accompany the expression of opinions because the government, or the public generally, hates or fears the opinions?
Here is the backstory.
Last weekend, in a series of continued emotional responses to the election of Donald Trump as president of the United States, and prodded by the death of Fidel Castro — the long-time, brutal, profoundly anti-American dictator of Cuba — students on a few American college campuses publicly burned American flags. These acts regenerated the generation-old debate about the lawfulness of this practice, with the president-elect decidedly on the side of those who condemn it.
For the sake of this analysis, like the U.S. Supreme Court, which has addressed this twice in the past 17 years, I am addressing whether you can burn your own American flag. The short answer is: Yes. You can burn your flag and I can burn mine, so long as public safety is not impaired by the fires. But you cannot burn my flag against my will, nor can you burn a flag owned by the government.
Before the Supreme Court ruled that burning your own flag in public is lawful, federal law and numerous state laws had made it criminal to do so. In analyzing those laws before it declared them to be unconstitutional, the Court looked at the original public understanding of those laws and concluded that they were intended not as fire safety regulations — the same statutes permitted other public fires — but rather as prophylactics intended to coerce reverence for the American flag by criminalizing the burning of privately owned pieces of cloth that were recognizable as American flags.
That is where the former statutes ran into trouble. Had they banned all public fires in given locations, for public safety sake, they probably would have withstood a constitutional challenge. But since these statutes were intended to suppress the ideas manifested by the public flag burning, by making the public expression of those ideas criminal, the statutes ran afoul of the First Amendment.
The First Amendment, which prohibits Congress from enacting laws infringing upon the freedom of speech, has consistently been interpreted in the modern era so as to insulate the public manifestation of political ideas from any government interference, whether the manifestation is by word or deed or both. This protection applies even to ideas that are hateful, offensive, unorthodox, and outright un-American. Not a few judges and constitutional scholars have argued that the First Amendment was written for the very purpose of protecting the expression of hateful ideas, as lovable or popular ideas need no protection.
The Amendment was also written for two additional purposes. One was, as Justice Jackson wrote as quoted above, to keep the government out of the business of passing judgment on ideas and deciding what we may read, speak about or otherwise express in public. The corollary to this is that individuals should decide for themselves what ideas to embrace or reject, free from government interference.
In the colonial era, the Founding Fathers had endured a British system of law enforcement that punished ideas that the King thought dangerous. As much as we revere the Declaration of Independence for its elevation of personal liberty over governmental orthodoxy, we are free today to reject those ideas. The Declaration and its values were surely rejected by King George III, who would have hanged its author, Thomas Jefferson, and its signers had they lost the American Revolutionary War. Thank God they won.
Justice Jackson also warned that a government strong enough to suppress ideas that it hates or fears was powerful enough to suppress debate that inconveniences it, and that suppression would destroy the purposes of the First Amendment. The Jacksonian warning is directly related to the Amendment's remaining understood purpose — to encourage and protect open, wide, robust debate about any aspect of government.
All these values were addressed by the Supreme Court in 1989 and again in 1990 when it laid to rest the flag burning controversies by invalidating all statutes aimed at suppressing opinions.
Even though he personally condemned flag burning, the late Justice Antonin Scalia joined the majority in both cases and actively defended both decisions. At a public forum sponsored by Brooklyn Law School in 2015, I asked him how he would re-write the flag burning laws, if he could do so. He jumped at the opportunity to say that if he were the king, flag burners would go to jail. Yet, he hastened to remind his audience that he was not the king, that in America we don't have a king, that there is no political orthodoxy here, and that the Constitution, which is the supreme law of the land, leaves freedom of expression to individual choices, not government mandates.
The American flag is revered because it is a universally recognizable symbol of the human sacrifice of some for the human freedom of many. Justice Scalia recognized that flag burning is deeply offensive to many people — this writer among them — yet he, like Justice Jackson before him, knew that banning it dilutes the very freedoms that make the flag worth revering.
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]]>I had intended to use this final column before the presidential election to explain at length why I cannot vote for either Hillary Clinton or Donald Trump and plan to vote for Gary Johnson for president. In a nutshell, big government is our biggest problem. It thrives on more debt, more taxes, more regulations, more war, a secretive deep state and less personal freedom. Both Clinton and Trump would grow the government. Only Johnson would shrink it.
One of the most dangerous tendencies of big government is the generation of a police state—wherein laws, rules and procedures are primarily written and can often be bent to aid law enforcement when it is encroaching on our personal freedoms. We saw a terrifying example of that last week when FBI Director James Comey behaved as if he were his most infamous predecessor, J. Edgar Hoover.
Here is the back story.
Late last week, in an effort to redeem himself from the consequences of having ignored a mountain of evidence of guilt against former Secretary of State Hillary Clinton last summer, Comey told Congress in a cryptic letter that the FBI would resume investigating her emails based upon the belief that more of them may be located in the laptop of disgraced former Rep. Anthony Weiner (D-NY). Weiner is the alleged sexual predator who remains the estranged husband of Huma Abedin, one of Clinton's closest aides. Abedin backed up all her emails onto the laptop that she and her husband shared.
At the time he sent his Friday letter, Comey had not yet seen the contents of the Weiner laptop because the search warrant authorizing FBI agents to access its contents was not signed until Sunday. If he saw something incriminating before he wrote his letter, he saw it unlawfully; yet his duty was to bring what he saw to the Department of Justice (DOJ), for which he works, not to hint about it publicly to Congress.
Comey's progress report to Congress is prohibited by the internal regulations of the DOJ and the FBI—and by the canons of legal ethics that regulate lawyers. Comey had no obligation to send the letter at any time; moreover, sending it last week was a direct violation of DOJ and FBI rules that prohibit all public announcements about candidates for public office within 60 days of Election Day.
Comey told FBI staffers early this week that he sent the letter because he felt duty-bound to members of a congressional committee to whom he had given a promise that he would keep them informed of the status of the email investigation. That was a troublesome promise because its compliance violated other duties imposed upon Comey. Worse than making a promise and not keeping it is making a promise that should not be kept.
The genesis of all this was Comey's unprecedented news conference on July 5, at which he announced that no charges would be filed against Clinton because no prosecutor would take the case. That was not an announcement for him to make. The FBI's job is to gather facts and present them to the DOJ, not to make legal evaluations. He made his announcement when he did to head off the behavior of some of his agents who were seeking Clinton's medical records, unlawfully, from the National Security Agency to ascertain the gravity of her head injury—an injury she posited during her FBI interrogation as the reason for her professed memory loss.
I have argued that Comey's July 5 decision was dead wrong; there is a mountain of evidence with which to indict and convict Clinton on espionage charges. Yet it should have been presented to a grand jury—it was not—rather than at a news conference. The July 5 announcement was bizarre in that it not only exonerated Clinton but also described the quantity and quality of the evidence against her. This insulted the agents who worked on the case and produced the lowest collective FBI morale since Watergate. If Comey sent his Friday letter to address the problems he caused by his July 5 announcement, he did the wrong thing for the wrong reasons.
But perhaps the gravest of Comey's violations is that of the constitutional guarantee of due process. The essence of due process is notice and fairness. How exquisitely unfair of Comey to say, in effect, "We have something that warrants investigation of you, yet we don't know its significance, so we can't say what it is." This is reminiscent of Franz Kafka's The Trial, in which the lead character is being pursued for a year on unnamed charges, against which he cannot defend himself.
In his play A Man for All Seasons, Robert Bolt shows Sir Thomas More arguing with William Roper, a colleague, who suggests that government lawbreaking can be justified for the greater good, particularly if the target is the devil (which Trump has called Clinton). More demolishes that argument in a few now iconic lines: "And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast—man's laws, not God's—and if you cut them down, and you're just the man to do it, d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."
To my friends who have rejoiced in James Comey's letter, please take warning that, as More accurately predicted, the tables can be turned. If there is any moral lesson in all this, it is that the history of human freedom consists of paying careful attention to constitutional guarantees and legal protections, no matter the reputation of the accused.
COPYRIGHT 2016 ANDREW P. NAPOLITANO
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]]>What if the Declaration of Independence states that the purpose of government is to protect our natural rights? What if natural rights are the freedoms we enjoy without neighbors or strangers or government interfering? What if those freedoms are listed in part in the Bill of Rights? What if the government is supposed to keep its hands off those freedoms because they are ours, we have not surrendered them and we have hired the government to protect them?
What if the reason some of our rights are listed in the Bill of Rights was the fear the colonists had after the American Revolution that the new government here might become as destructive of freedom as the British king and Parliament — whose government they had just kicked out — were before the Revolution? What if it is impossible to list completely the freedoms that all people enjoy by reason of our humanity? What if the Framers — who wrote the Constitution and the Bill of Rights — understood that?
What if, in order to address the impossibility of listing all rights, the Framers ratified the Ninth Amendment? What if the Ninth Amendment declares that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage other rights retained by the people? What if this amendment was the Framers' way of recognizing the inherent attachment of our personal liberties to our individual humanity?
What if the government is supposed to protect those liberties — the ones that are enumerated in the Bill of Rights and the others that are too numerous to enumerate and are covered by the Ninth Amendment?
What if the government — no matter which party controls the White House or Congress — always claims that it is protecting personal freedoms? What if this is just an empty boast? What if there is a government within the government that never changes, never shrinks, answers only to itself, hates and fears personal freedoms, and is largely unrecognized by the Constitution?
What if that government, because of its secrecy, is largely unaccountable to the voters? What if it resides in the Federal Reserve, the military, federal law enforcement and intelligence establishments, and an enormous federal bureaucracy that regulates and spends in secret to a greater extent every year, no matter which party is in control?
What if the secret government commands the loyalty of the elected government by sharing secrets with it? What if the law requires those shared secrets to be kept secret? What if the elected government knows what the secret government is up to but cannot legally reveal it?
What if members of Congress know why Hillary Clinton was not indicted but they learned it in secret and so cannot legally reveal it? What if members of Congress know the extent of the Donald Trump financial shell game but they learned that in secret and so cannot reveal it?
What if some personal courage has broken this mold? What if Edward Snowden revealed massive secret government spying on all Americans after the government had denied it? What if Sen. Dianne Feinstein revealed horrific torture by the federal government after the government had denied it? What if the elected government knew about the spying and the torture but was legally prevented from revealing it? What if Hillary Clinton was largely right when she said politicians have a public persona and a private persona? What if President Barack Obama has demonstrated his two sides by killing people in secret, with his undeclared wars, and denying it in public?
What if the interest rate you pay on your home mortgage or car loan is not established by the free market — or even reached by bankers looking for your business — but is fixed in private by the secret government? What if the secret government has decided that it prefers Clinton to succeed President Obama and so its agents in law enforcement will overlook all evidence of Clinton's lawbreaking in order to bring that about? What if the secret government has given Trump an enormous pass on his financial behavior, a pass unavailable to the average voter, and it needs to keep that secret?
What if government has no interest in personal freedom, except perhaps as a catchy phrase around which to rally support? What if government nurtures having foreign adversaries — real and imagined — so that it has an excuse, in repelling or resisting those enemies, to exercise unlawful powers?
What if the presidential election this year has become a beauty contest — devoid of intellectual substance, without serious debate over the limited duties of government in a constitutional democracy, rolling in the gutter and largely motivated by hate and fear? What if both Clinton and Trump recognize the paradox that government is essentially the negation of personal liberty? What if whoever wins will largely use it for that purpose?
What if liberty really is attached to humanity? What if all rational people yearn for personal freedom? What if the government — in order to stay in power — has detached liberty from humanity and made it a gift of the state instead of a gift of God? What if government knows that by restricting and then expanding liberty, it can command loyalty?
What if there is a sense of hopelessness in the land? What if this hopelessness is bred by a government that kills, lies, steals, conceals, and denies? What if that hopelessness is furthered by a rational fear that things will only get worse, no matter who wins the presidential election? What do we do about it?
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The post Whether Donald Trump or Hillary Clinton Is Elected President, Liberty Loses appeared first on Reason.com.
]]>It seems that at every turn during this crazy presidential election campaign — with its deeply flawed principal candidates (whom do you hate less?) — someone's personal or professional computer records are being hacked. First it was Hillary Clinton's emails that she had failed to surrender to the State Department. Then it was a portion of Donald Trump's 1995 tax returns, showing a $916 million loss he claimed during boom times. Then it was those Clinton emails again, this time showing her unacted-upon doubts about two of our Middle Eastern allies' involvement in 9/11 and her revelation of some secrets about the killing of Osama bin Laden.
The reason we know about these leaks is the common thread among them — the willingness of the media to publish what was apparently stolen. Hence the question: Can the government hold the press liable — criminally or civilly — for the publication of known stolen materials that the public wants to know about? In a word: No.
Here is the back story.
When Daniel Ellsberg, an outside contractor working in the Pentagon, stole a secret study of U.S. military involvement in Vietnam in 1971, which revealed that President Lyndon Johnson had lied repeatedly to the public about what his military advisers had told him, the Department of Justice secured an injunction from U.S. District Judge Murray Gurfein, sitting in Manhattan, barring The New York Times from publishing what Ellsberg had turned over to Times reporters. Such an injunction, known as a "prior restraint," is exceedingly rare in American legal history.
This is so largely because of the sweeping language of the First Amendment — "Congress shall make no law…abridging the freedom of speech, or of the press" — as well as the values that underlie this language. Those values are the government's legal obligation to be accountable to the public and the benefits to freedom of open, wide, robust debate about the government — debate that is informed by truthful knowledge of what the government has been doing.
Those underlying values spring from the Framers' recognition of the natural right to speak freely. The freedom of speech and of the press had been assaulted by the king during the Colonial era, and the Framers wrote a clear, direct prohibition of such assaults in the initial amendment of the new Constitution.
Notwithstanding the First Amendment, Judge Gurfein accepted the government's argument and found that palpable, grave, and immediate danger would come to national security if the Times were permitted to publish what Ellsberg had delivered.
The Times appealed Judge Gurfein's injunction, and that appeal made its way to the Supreme Court. In a case that has come to be known as the Pentagon Papers case, the high court ruled that when the media obtains truthful documents that are of material interest to the public, the media is free to publish those documents, as well as commentary about them, without fear of criminal or civil liability.
The government had argued to the Supreme Court — seriously — that "'no law' does not mean 'no law'" when national security is at stake. Fortunately for human freedom and for the concept that the Constitution is the supreme law of the land and means what it says, the court rejected that argument. It also rejected the government's suggested methodology.
The government argued that because Congress and the president had agreed to void a constitutional mandate — the First Amendment's "no law" language — in deference to national security, the judiciary should follow. That methodology would have rejected 180 years of constitutional jurisprudence that taught that the whole purpose of an independent judiciary is to say what the Constitution and the laws mean, notwithstanding what Congress and the president want. Were that not so, the courts would be rubber stamps.
Moreover, the high court ruled, it matters not how the documents came into the possession of the media. The thief can always be prosecuted, as Ellsberg was, but not the media to which the thief delivers what he has stolen. In Ellsberg's case, the charges against him were eventually dismissed because of FBI misconduct in pursuit of him — misconduct that infamously involved breaking in to his psychiatrist's office looking for dirt on him.
Since that case, the federal courts have uniformly followed the Pentagon Papers rule. Hence, much to the chagrin of the Obama administration, the media was free to publish Edward Snowden's revelations about the ubiquitous and unconstitutional nature of government spying on Americans by the National Security Agency. The same is true for Trump's tax returns and Clinton's emails.
Are these matters material to the public interest?
Of course they are. In a free society — one in which we do not need a government permission slip to exercise our natural rights — all people enjoy a right to know if the government is spying on us in violation of the constitutionally protected and natural right to privacy. We also have a right to know about the financial shenanigans or uprightness and the honesty or dishonesty of those who seek the highest office in the land. That is particularly so in the 2016 campaign, in which Trump has argued that his business acumen makes him uniquely qualified to be president and Clinton has offered that her experiences as secretary of state would bring a unique asset to the Oval Office.
Efforts to silence the press or to punish it when it publishes inconvenient truths about the government or those who seek to lead it are not new, and the vigilance of the courts has been unabated. Thomas Jefferson — himself the victim of painful press publications — argued that in a free society, he'd prefer newspapers without a government to a government without newspapers. Would Clinton or Trump say that today?
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]]>What if the most remarkable aspect of this presidential election is not how much the two principal candidates disagree with each other but how much they actually agree?
What if they are both statists? What if they both believe that the government's first duty is to take care of itself? What if they both believe in the primacy of the state over the individual?
What if, in clashes between the state and individuals, they both would use the power of the state to trample the rights of individuals?
What if the first priority of both is not to decrease the size and scope of government but to expand it? What if they both believe that the federal government may lawfully and constitutionally right any wrong, tax any behavior and regulate any event? What if they both want to add a few thousand new employees to the federal payroll, give them badges and guns and black shirts, and engage them as federal police to insulate the federal government further from the people and the states?
What if, when James Madison wrote the Constitution, he took great pains to reserve powers to the people and the states that were not delegated away to the feds? What if both Hillary Clinton and Donald Trump couldn't care less about that?
What if both of them reject the Madisonian principle that the federal government is limited in scope to the 16 unique and discrete powers given to it by the Constitution? What if they even reject the corollary to that principle, which is that the balance of governmental powers — those not delegated by the Constitution to the feds — resides in the states? What if they both reject the Madisonian principle that in areas of governmental power retained by the states, the states should be free from federal interference?
What if this principle of a limited federal government depends upon the principle of natural rights — areas of human behavior and choice stemming from our humanity and immune from government interference? What if the Declaration of Independence and the Ninth Amendment to the Constitution define our natural rights as inalienable? What if both Trump and Clinton reject that? What if she believes in killing innocents by drone and he believes in torturing innocents at Gitmo?
What if both Clinton and Trump accept the principle that the federal government can address any problem for which there is a national political consensus? What if this idea — championed by Woodrow Wilson, who hated the values of Madison — is the opposite of what the Framers wrote and intended?
What if this Wilsonian principle has unleashed the federal government to regulate nearly all aspects of personal behavior and to enhance immeasurably the powers of an unelected, unseen, and unaccountable federal bureaucracy, which never seems to shrink or change?
What if both Trump and Clinton embrace the idea that federal power, rather than being limited by the Constitution, is limited only by what the feds can't get away with politically? What if this concept was expressly rejected by the Framers but both Trump and Clinton don't care? What if neither of them believes that a limited federal government must reside and remain within the confines of the Constitution?
What if Trump wants the police to be able to stop anyone they wish based on just a hunch that the person is armed or possessing contraband? What if the Fourth Amendment — which requires the police to have individual articulable suspicion, not just hunches and not judgments based on race, in order to stop a person — was expressly written to prohibit just what Trump wants? What if Trump doesn't care because he prefers votes to constitutional fidelity?
What if Clinton wants free higher education for all in America who go to community colleges, all of which are government-owned? What if the Constitution does not delegate regulatory or spending authority over education to the feds? What if there is no such thing as "free" college? What if someone somewhere will need to pay for it?
What if all federal revenue is already committed to wealth transfers (Medicare, Medicaid, Social Security, welfare), interest payments on the federal government's debt (now north of $400 billion annually), and the Pentagon (which spends crazily so its budget won't be reduced in the future)? What if the Clinton "free" college deal would mean the feds would need to tax more or borrow more or both?
What if more taxation means less money for the productive aspects of society? What if more borrowing produces a decrease in the value of what you already own? What if a dollar spent by the feds produces far less wealth — jobs, income, productivity — than a dollar invested in the private sector? What if Clinton doesn't care because she prefers votes to economic productivity?
What if both Trump and Clinton believe they can use the federal government to bribe the poor with handouts, the middle class with tax breaks, the rich with bailouts and write-offs, and the states with block grants? What if Trump himself has benefited enormously from federal write-offs available only to the very rich?
What if neither talks about personal liberty in a free society? What if they both talk about the government's duty to keep us safe? What if neither talks about the government's first duty, which is to keep us free? What if neither believes that the government works for us? What if they both really believe that we work for the government?
What if Mark Twain was right when he said that the reason we get to vote is it doesn't make much difference?
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The post Donald Trump and Hillary Clinton Have More in Common Than You Think appeared first on Reason.com.
]]>"No person shall…be deprived of life, liberty, or property, without due process of law…" — Fifth Amendment to the U.S. Constitution
The clash in American history between liberty and safety is as old as the republic itself. As far back as 1798, notwithstanding the lofty goals and individualistic values of the Declaration of Independence and the Constitution, the same generation — in some cases the same human beings — that wrote in the First Amendment that "Congress shall make no law…abridging the freedom of speech" enacted the Alien and Sedition Acts, which punished speech critical of the government.
Similarly, the Fifth Amendment's guarantee of due process has been ignored by those in government charged with enforcing it when they deal with a criminal defendant whom they perceive the public hates or fears. So it should come as no surprise that no sooner had the suspect in the recent New Jersey and New York City bombings been arrested than public calls came to strip him of his rights, send him to Gitmo and extract information from him. This is more Vladimir Putin than James Madison.
I have often argued that it is in times of fear — whether generated by outside forces or by the government itself — when we need to be most vigilant about protecting our liberties. I make this argument because when people are afraid, it is human nature for them to accept curtailment of their liberties — whether it be speech or travel or privacy or due process — if they become convinced that the curtailment will keep them safe. But these liberties are natural rights, integral to all rational people and not subject to the government's whim.
I can sacrifice my liberties, and you can sacrifice yours, but I cannot sacrifice yours; neither can a majority in Congress sacrifice yours or mine.
The idea that sacrificing liberty actually enhances safety enjoys widespread acceptance but is erroneous. The Fort Hood massacre, the Boston Marathon killings, the slaughters in San Bernardino and Orlando, and now the bombings in New Jersey and New York all demonstrate that the loss of liberty does not bring about more safety.
The loss of liberty gives folks the false impression that the government is doing something — anything — to keep us safe. That impression is a false one because in fact it is making us less safe, since a government intent on monitoring our every move and communication loses sight of the moves and communications of the bad guys. As well, liberty lost is rarely returned. The Patriot Act, which permits federal agents to bypass the courts and issue their own search warrants, has had three sunsets since 2001, only to be re-enacted just prior to the onset of each — and re-enacted in a more oppressive version, giving the government more power to interfere with liberty, and for a longer period of time each time.
We know from the Edward Snowden revelations and the National Security Agency's own admissions that the NSA has the digital versions — in real time — of all telephone calls, text messages and emails made, sent or received in the U.S. So if the right person is under arrest for the bombings last weekend, why didn't the feds catch this radicalized U.S. citizen and longtime New Jersey resident before he set off his homemade bombs? Because the government suffers from, among other ailments, information overload. It is spread too thin. It is more concerned with gathering everything it can about everyone — "collect it all," one NSA email instructed agents — than it is with focusing on potential evildoers as the Fourth Amendment requires.
Why do we have constitutional guarantees of liberty?
The Constitution both establishes the federal government and confines it. It presents intentional obstacles in the path of the government. Without those obstacles, we might be safe from domestic harm, but who would keep us safe from the government? Who would want to live here if we had no meaningful, enforceable guarantees of personal liberties? When our liberties are subject to the needs of the police, we will end up in a police state. What does a police state look like? It looks like the Holocaust and communism.
Everyone who works in government has taken an oath to uphold the Constitution. Hence, it is distressing to hear lawmakers calling for the abolition of due process for certain hateful and hurtful defendants. Due process — fairness from the government, the right to silence, the right to counsel and the right to a jury trial with the full panoply of constitutional requirements and protections — is vital to our personal liberties and to our free society as we have known it.
If anyone who appears to have been motivated to attack Americans or American values based on some alleged or even proven foreign motivation could be denied the rights guaranteed to him under the Constitution by a government determination before trial, then no one's rights are safe.
The whole purpose of the guarantee of due process is to insulate our liberties from subjective government interference by requiring it in all instances when the government wants life, liberty, or property — hence the clear language of the Fifth Amendment. The star chamber suggested by those who misunderstand the concept of guaranteed rights is reminiscent of what King George III did to the colonists, which was expressly condemned in the Declaration of Independence and which sparked the American Revolution.
Supreme Court Justice Felix Frankfurter once wrote that the history of American freedom is, in no small measure, following fair procedures — which means enforcing the guarantee of due process. Without due process for those we hate and fear — even those whose guilt is obvious — we will all lose our freedoms.
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]]>This summer, we have all witnessed the heavy hand of government intervening in the freedom of speech, as the behavior of the Secret Service at both the Republican convention in Cleveland and the Democratic convention in Philadelphia was troubling and unconstitutional.
Though the First Amendment was originally written only to restrain Congress ("Congress shall make no law … abridging the freedom of speech"), it is now uniformly interpreted to restrict all government in America from abridging the freedom of speech.
The reason this freedom is referred to as "the" freedom of speech is to reflect the belief of the Framers that the right to speak freely is pre-political. Stated differently, the freedom of speech is an integral aspect of our humanity. The government does not grant the freedom of speech; it is prohibited from interfering with it.
This is known as a negative right, in the sense that government is negated from interfering with a personal natural right. A natural right is one whose exercise does not require a government permission slip. Speech is the classic example.
The reasons for this are numerous, and not the least of them are our natural inclinations to think as we wish and to say what we think in pursuit of happiness and personal fulfillment. The practical reasons for this right are the needs of an informed electorate to challenge the government and demand transparency and accountability.
How did this play out during the hot weeks in Cleveland and Philadelphia? Not well.
Though the political parties are private entities with their own rules, they have invited their members and supporters to these quadrennial conventions for the purpose of engaging in public political conversations.
Yet if the Republicans wanted only pro-Trump sentiments to be expressed in the hall in Cleveland and if the Democrats wanted only pro-Clinton sentiments to be expressed in the hall in Philadelphia, since neither entity is the government, both are free to abridge the freedom of speech without legal consequences.
The consequences of such abridgments would presumably be political; those whose speech is silenced and those who oppose silencing public political speech would cast their votes against the silencers.
Yet this summer, the heavy hand of government was involved in silencing speech.
Here is the back story.
Because both Donald Trump and Hillary Clinton are entitled to Secret Service protection by virtue of a federal statute, the Secret Service either offered or demanded that it be the lead law enforcement agency providing general security—not just to Trump and Clinton but for everyone — at the conventions. In both cities, local officials went along with this.
The freedom of speech issues arose when the leadership of both conventions got so cozy with the Secret Service that they began using the federal agency as if it were private security, and they did so in such a manner as to preclude judicial intervention in aid of the freedom of speech.
Thus, when the Republican leadership wanted to quell a "Never Trump" boomlet on the convention floor, it had the Secret Service remove all reporters and producers — including some of my Fox News colleagues — from the floor. And when the Democratic leadership wanted to silence a pro-Bernie Sanders onslaught on the convention floor, it had the Secret Service confiscate Sanders placards from delegates on the floor.
The government removal of the press by command of the Republicans and the government removal of Sanders placards by command of the Democrats constitute not only an unheard-of commandeering of the government's coercive powers for a private purpose but also the government's abridging the freedom of speech. And all this was done quickly and without notice — and without an opportunity for redress to the courts.
The first duty of government is to preserve life, liberty, and property. It is a strange and dangerous government that stifles freedom for some fleeting private purpose. It is equally strange that a freedom-loving people would tolerate this.
The whole purpose of the First Amendment and its underlying values is to encourage open, wide, robust, unbridled debate about the policies and the personnel of the government. The prevailing judicial interpretations of these values quite properly keep the government out of the business of assessing the value and propriety of public political speech.
The First Amendment demands that the test for acceptance or rejection of speech in the marketplace of ideas be made by individuals — uninfluenced, undeterred, and unmolested by the government.
When the government stifles free choice in an area such as speech, it is no longer the people's servant. It has become their master. Do you know anyone outside the government who wants that?
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]]>When FBI Director James Comey publicly revealed his recommendation to the Department of Justice last week that former Secretary of State Hillary Clinton not be prosecuted for espionage, he unleashed a firestorm of criticism from those who believe that Clinton was judged by different standards from those used to judge others when deciding whether to bring a case to a grand jury.
The FBI investigation had a bizarre ending to it. FBI recommendations are never made public as this one was. Attorney General Loretta Lynch had been compromised by her politically disastrous but legally consequential meeting out of the view of the media with Bill Clinton just one week before Comey's announcement. Whatever they discussed, the overwhelming public impression was such that Lynch removed herself and her senior aides from the case, effectively leaving the FBI to have the final say. This is unheard of in the post-Hoover FBI.
The Comey announcement itself gave two reasons for recommending against indictment. One was that "no reasonable prosecutor" would take the case. That is not a judgment the FBI gets paid to make. The FBI's job is to gather, present, and evaluate facts and evidence, not predict what prosecutors might do with it. The other stated reason for recommending against indictment was that though Clinton may have been "extremely careless" in handling state secrets, she was not "grossly negligent," which is the standard required by the espionage statute.
Yet Comey also acknowledged that Clinton sent state secrets to nongovernmental colleagues who lacked national security clearances, that those people were hacked by hostile intelligence services, and that she used her numerous non-secure mobile devices recklessly while inside the territorial borders of those hostile governments. If all that is somehow extremely careless but not grossly negligent, then many who have done far less than Clinton — and have been prosecuted and convicted — were wrongly prosecuted.
Since Comey's announcement last week, several new factors have come to light. One is that the DOJ never presented any evidence to a grand jury. It never sought subpoenas from a grand jury. This is unheard of in major criminal investigations because the FBI alone has no subpoena power and needs a grand jury to issue subpoenas for it.
The absence of a sitting grand jury also makes one wonder about the circumstances under which and the purpose for which the DOJ obtained immunity for Bryan Pagliano, Clinton's internet technology adviser. She paid him $5,000 to migrate her public and her secret State Department email streams from the government's secure servers to her own non-secure servers. Immunity, which is essentially the pre-indictment permanent forgiveness of criminal behavior, cannot be given lightly and can only be given in return for testimony — usually to a grand jury or a trial jury. Strangely, that was not the case here.
Nevertheless, Clinton's persistent problems with personal honesty have brought her face to face with three more criminal investigations. One is for public corruption. The second is for perjury. And the third is for misleading Congress.
The public corruption investigation has been underway for a few months. The allegations are that she exercised the powers of her office as secretary of state to enrich her husband and herself. The evidence here is ample. There are dozens of documented instances in which foreign governments and individuals received beneficial treatment from her State Department — usually exemptions from compliance with American laws or — and then collectively gave hundreds of millions of dollars to the Clinton Foundation at a time when it was not a registered lawful charity.
The second investigation Clinton faces is for perjury. This arises out of a Freedom of Information Act (FOIA) civil lawsuit during which she swore in writing and under oath, citing the phrase "under penalty of perjury," that she surrendered all of her work-related emails to the State Department. When she left the State Department, she effectively took all of her emails with her. Then, when the FOIA cases began, she returned about half of what she had taken, claiming that the other half was personal.
The FBI found that she failed to return thousands of work-related emails, some of which she and her lawyers attempted to destroy and some of which they succeeded in destroying. Who ordered the destruction?
Finally, Clinton will most likely be confronted with charges of misleading Congress. Misleading Congress consists of intentionally creating a false impression in response to material congressional questions. She did this when she denied to the House Select Committee on Benghazi that she had sent or received emails via her home servers that contained state secrets.
The FBI found 110 emails in that category, at least two dozen of which were at the highest level of protection that the government accords its secrets. She also told that same committee that she had surrendered all her work-related emails to the State Department.
Former New York Yankees pitching great Roger Clemens was tried twice (after a trial that ended with a hung jury, he was ultimately acquitted) for misleading Congress when he was forced to speak to a House committee about the contents of his blood and urine as a baseball player. Clinton has misled Congress about her lawful obligations as secretary of state, and she skates free.
Back in the Whitewater days, when the propensity of both Bill and Hillary Clinton to lie routinely and naturally first became apparent to the media and the public, the late, great New York Times columnist William Safire referred to Mrs. Clinton by a moniker that enraged her husband. He became so fearful of the truth and so furious with Safire that he publicly threatened to punch Safire in the nose.
Safire called Hillary Clinton a congenital liar. He was right. That was 20 years ago. Some people never change.
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The post Hillary Clinton Never Changes and Always Skates appeared first on Reason.com.
]]>Is it worth impairing the reputation of the FBI and the Department of Justice (DOJ) to save Hillary Clinton from a deserved criminal prosecution by playing word games?
What has become of the rule of law — no one is beneath its protections or above its requirements — when the American public can witness a game of political musical chairs orchestrated by Bill Clinton at an airport in a bizarre ruse to remove the criminal investigation of his wife from those legally responsible for making decisions about it?
How hairsplitting can the FBI be in acknowledging "extreme recklessness" while denying "gross negligence" about the same events, at the same time, and in the same respect?
These are questions that now beg for answers in light of what can only be the politically motivated FBI report delivered earlier this week on the likely criminal behavior of Hillary Clinton.
The espionage statute that criminalizes the knowing or grossly negligent failure to keep state secrets in a secure venue is the rare federal statute that can be violated and upon which a conviction may be based without the need of the government to prove intent.
Thus, in the past two years, the DOJ has prosecuted a young sailor for sending a single selfie to his girlfriend that inadvertently showed a submarine sonar screen in its background. It also prosecuted a Marine lieutenant who sent his military superiors a single email about the presence of Al Qaeda operatives dressed as local police in a U.S. encampment in Afghanistan — but who inadvertently used his Gmail account rather than his secure government account.
And it famously prosecuted Gen. David Petraeus for sharing paper copies of his daily calendar in his guarded home with a military colleague also in the home — someone who had a secret security clearance herself — because the calendar inadvertently included secret matters in the pages underneath the calendar.
Yet earlier this week, FBI Director James Comey — knowing that his bosses in the DOJ would accept his legal conclusions about Clinton's failure to keep state secrets secure, because they had removed themselves from independently judging the FBI's work — told the public that whereas the inadvertence of the above defendants was sufficient to justify their prosecutions, somehow Clinton's repeated extreme recklessness was not.
It is obvious that a different standard is being applied to Clinton than was applied to Petraeus and the others. It is also now painfully obvious that the game of musical chairs we all witnessed last week when Bill Clinton entered the private jet of Comey's boss — Attorney General Loretta Lynch — unannounced and spent 30 private minutes there with her at a time when both he and his wife were targets of FBI criminal probes was a trick to compromise Lynch and remove her and her aides from the DOJ chain of command regarding the decision as to whether to present evidence of crimes against either of the Clintons to a federal grand jury.
Why do we stand for this?
The criminal case against Mrs. Clinton would have been overwhelming. The FBI acknowledged that she sent or received more than 100 emails that contained state secrets via one of her four home servers. None of those servers was secure. Each secret email was secret when received, was secret when sent and is secret today. All were removed from their secure venues by Clinton, who knew what she was doing, instructed subordinates to white out "secret" markings, burned her own calendars, destroyed thousands of her emails and refuses to this day to recognize that she had a duty to preserve such secrets as satellite images of North Korean nuclear facilities, locations of drone strikes in Pakistan, and names of American intelligence agents operating in the Middle East under cover.
Why do we stand for this?
Comey has argued that somehow there is such a legal chasm between extreme recklessness and gross negligence that the feds cannot bridge it. That is not an argument for him to make. That is for a jury to decide after a judge instructs the jury about what Comey fails to understand: There is not a dime's worth of difference between these two standards. Extreme recklessness is gross negligence.
Unless, of course, one is willing to pervert the rule of law yet again to insulate a Clinton yet again from the law enforcement machinery that everyone else who fails to secure state secrets should expect.
Why do we stand for this?
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The post Hillary Clinton Saved From Prosecution Thanks to FBI's Word Games appeared first on Reason.com.
]]>The people in the government who want to control our personal choices are the enemies of freedom. And the enemies of freedom can be very clever and seductive. Last week, these folks, manifesting their lust to keep us dependent upon the government by rejecting the natural right to self-defense, coined a clever phrase: "No fly, no buy." It sounds rational, yet it rejects core American values.
The phrase was pounded home to average Americans during a one-sided 15-hour televised marathon on the floor of the Senate orchestrated by the gun control crowd. The essence of the argument was that stricter laws regarding gun sales would have prevented the massacre at the Pulse nightclub in Orlando, Florida. In gun control advocates' dream world, the self-loathing Islamic State-inspired killer, willing to take 49 innocent lives, would somehow have been unwilling to violate restrictive gun purchase laws; and his obedience to those laws would have saved lives.
Their argument is naive and absurd. A person willing to commit mass murder is surely willing to break the law to acquire the means to commit the murders. So blinded were these senators in their misguided utterances about self-defense that they forgot about the Constitution.
The legislation they offered would have required that people whose names the feds put on a terror watchlist or a no-fly list (these are often done simultaneously) would not be legally able to purchase a gun. The senators summarized this idea dozens of times as "no fly, no buy."
Though this phrase, which was quickly picked up by many of my colleagues in the media, has an easy and simplistic ring to it, it reveals a troubling ideology that profoundly rejects core American values.
When Thomas Jefferson wrote in the Declaration of Independence that we are endowed by our Creator with certain inalienable rights and when the inalienability of our rights was codified in the first 10 amendments to the Constitution, the United States was wedded to the Judeo-Christian principle that our rights stem from our humanity. This was expressly recognized recently by the Supreme Court in District of Columbia v. Heller, in which it held that the right to keep and bear arms is a fundamental personal right, not a gift of the government to a group.
A fundamental personal right is the natural ability of individuals to make meaningful choices without a government permission slip. May the government ever interfere with fundamental rights? The short answer is yes. The longer answer is that it can only do so if it can demonstrate a compelling governmental interest—served by the least restrictive means, and only after due process.
Stated differently, if the government wants to silence your speech or deny you the right to self-defense, it must meet a very high burden in a public courtroom. It must demonstrate to a judge and jury that its need to silence or disarm you is compelling, and its goals may not be attained by any lesser means. Americans need not demonstrate a compelling need to speak or bear arms; the government must demonstrate a compelling need to prevent us from doing so.
That is what lawyers call black letter law—meaning it is well-established, followed throughout the land and rarely challenged. Until now.
Earlier this week in the Senate, the gun control crowd sought to give nameless and faceless federal bureaucrats the ability to strip Americans of their right to keep and bear arms by putting their names on a terror watchlist/no-fly list and prohibiting those on the list from buying guns. Yet none of these senators could state the criteria for putting a name on that list, and none could identify the people who prepare or keep the list.
That's because these are well-guarded government secrets—secrets that have no place in American life.
If a government bureaucrat can put your name on a secret list on the bureaucrat's own whim or even using secret standards and, as a result, you have lost a fundamental liberty, then the feds have transformed a natural right into a governmental gift. If the feds can create a no-fly list in secret and "no fly" comes to mean "no buy," then we have no rights but what the government will permit us to do.
As if to underscore his ignorance of American values, one of the senators even stated that due process is killing us. He must have forgotten his oath to uphold the Constitution, which guarantees that the government may not take life, liberty, or property without due process.
Due process—the absolute right to know the law and to force the government to prove a violation of it to a jury before it can take life, liberty or property—is the essence of the rights of free people. It is utterly scandalous—and probably disqualifying from office—that a senator could bemoan its existence.
Can you see how low we have sunk? The gun control crowd doesn't care about personal liberty in a free society; it just cares about control. It wants us all to be pliant and reliant on a government that it controls; never mind that it is utterly incapable of protecting us from crazies who will resort to mass death for their own deranged purposes.
If the government secretly can put an American's name on a secret list and, as a result, his liberty is lost, then there are no freedoms—just government-granted privileges. And if it can do this to the natural rights to travel and self-defense, can other fundamental rights be far behind?
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]]>Most of the mass killings by gun in the United States in recent years—Columbine, Virginia Tech, Aurora, Newtown, Charleston, San Bernardino, and now Orlando—took place in venues where local or state law prohibited carrying guns, even by those lawfully licensed to do so. The government cheerfully calls these venues "gun-free zones." They should be called killing zones.
As unspeakable and horrific as is the recent slaughter in Orlando, it has become just another example of the tragic consequences of government's interfering with the exercise of fundamental liberties. After a while, these events cease to shock; but they should not cease to cause us to re-examine what the government has done to us.
We know from reason, human nature, and history that the right to defend yourself is a natural instinct that is an extension of the right to self-preservation, which is itself derived from the right to live. Life is the great gift from the Creator, and we have a duty to exercise our freedoms to preserve life until its natural expiration. But the lives we strive to preserve should not be those actively engaged in killing innocent life.
The Framers recognized this when they ratified the Second Amendment, which the Supreme Court recently held was written to codify—and thus prevent the government from infringing on—the pre-political right to own and use modern-day weapons for self-defense or to repel tyrants.
The term "pre-political" derives from the language of the Second Amendment, which protects "the right of the people to keep and bear Arms." The constitutional reference of "the" right to keep and bear arms makes clear that the Framers recognized that the right pre-existed the government because it stems from our humanity. That's why pre-political rights are known as fundamental or natural rights.
Because the right to use modern weaponry for the defense of life, liberty, and property is natural, we should not need a government permission slip before exercising it, any more than we need one to exercise other natural rights, such as speech, press, assembly, travel and privacy.
Yet since the Progressive era 100 years ago—ushered in by Theodore Roosevelt and Woodrow Wilson and enabled by nearly every president since—the government has taken the position that it can care for us better than we can care for ourselves. So it has severely curtailed our rights and left us reliant on the government itself for protection.
The modern-day massacres are proof beyond a doubt that the government cannot protect us.
In the Orlando tragedy, the man who killed 49 and wounded 53 used a handgun and a rifle. The handgun accepted magazines containing 17 bullets, and the rifle accepted magazines containing 30 bullets. The killer, using both weapons, fired more than 250 times last Sunday morning. That means he reloaded his weapons about a dozen times. Each time he reloaded, he stopped shooting, as it is impossible for any person to shoot and reload simultaneously.
We know from forensics that the killer was a poor shot. We can deduce from that knowledge that he was a slow reloader. One learns to shoot first and reload later. It is likely that it took between three and seven seconds each time he reloaded the handgun and longer with the rifle. In those time periods, any trained person carrying a handgun in that Orlando nightclub could have wounded or killed him—and stopped the slaughter.
Don't expect to hear that argument from the gun control crowd in the government. It is the same crowd that has given us the killing zones. It is the same crowd that does not trust you to protect yourself. It is the same crowd that ignores the reality that in the post-World War II era, there is not one recorded example in the U.S. of a person in a restaurant or bar getting drunk and shooting his lawfully carried handgun.
Hillary Clinton called the rifle the Orlando killer carried a "weapon of war." It is not. It is the same rifle that her Secret Service detail carries. Many of her acolytes have called it an assault rifle. It is not. It fires one round for each trigger pull. True assault rifles—not those that the politicians have renamed assault rifles because they have a collapsible stock and a bayonet holder (I know this sounds ridiculous, but it is true)—fire numerous rounds per trigger pull. They have been outlawed on U.S. soil since 1934.
What do we have here?
We have a government here that is heedless of its obligation to protect our freedoms. We have a government that, in its lust to have us reliant upon it, has created areas in the U.S. where innocent folks living their lives in freedom are made defenseless prey to monsters—as vulnerable as fish in a barrel. And we have mass killings of defenseless innocents—over and over and over again.
How dumb are these politicians who want to remove the right to self-defense? There are thousands of crazies in the U.S. who are filled with hate—whether motivated by politics, self-loathing, religion, or fear. If they want to kill, they will find a way to do so. The only way to stop them is by superior firepower. Disarming their law-abiding victims not only violates the natural law and the Constitution but also is contrary to all reason.
All these mass killings have the same ending: The killer stops only when he is killed. But that requires someone else with a gun to be there. Shouldn't that be sooner rather than later?
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The post In Defense of Self-Defense appeared first on Reason.com.
]]>While Hillary Clinton and Bernie Sanders are battling in their final round in the Democratic primaries and Donald Trump is arguing that Clinton should be in prison for failing to safeguard state secrets while she was secretary of state, the same FBI that is diligently investigating her is quietly and perniciously seeking to cut more holes in the Fourth Amendment to the Constitution.
That amendment — which requires the government to obtain a search warrant issued by a judge based upon some evidence of criminal wrongdoing, called probable cause, before the government can search persons, houses, papers or effects — is the linchpin of the right to privacy, famously referred to by Justice Louis Brandeis as the right to be let alone.
The Fourth Amendment has a painful yet unambiguous history. The essence of that history is the well-documented and nearly universal Colonial revulsion to the British use of general warrants.
General warrants, which were usually issued in secret in London, permitted British soldiers and agents in America to search wherever they wished and seize whatever they found. General warrants were not based upon any individualized suspicion, much less any probable cause. Their stated purpose was the need to enforce the Stamp Act, a totalitarian measure that cost more to enforce than it generated in revenue.
The Stamp Act required all colonists to purchase and affix stamps to all legal, financial, political, personal and public documents. It was billed as a revenue-gathering measure, but it truly was used as an excuse to humiliate the colonists by permitting soldiers and agents to enter their homes ostensibly looking for the stamps. They were really looking for evidence of revolutionary ideas and plans against the king.
After Americans won the Revolution and wrote the Constitution, they did so with the determination never to permit the new government here to do to Americans what the pre-Revolutionary British government had done to the colonists. Their chosen instrument of that prevention was the Fourth Amendment.
But the feds have been wearing away at the right to privacy for generations. The Right to Financial Privacy Act (which has nothing to do with protecting privacy) permits federal agents to obtain certain bank records with search warrants issued by other federal agents — as opposed to judges — as long as they are looking for mobsters or drug dealers. The Patriot Act (which has nothing to do with patriotism) enables FBI agents to issue search warrants to other FBI agents for certain business records — including doctors' and lawyers' offices, car and jewelry dealers, and the post office — as long as they are looking for threats to national security. And the Electronic Communications Privacy Act (which interferes with the privacy of almost all electronic communications) permits FBI agents to access certain metadata (the who, where and when of emails, but not their contents), as long as one FBI agent issues the warrant to another and as long as the recipient uses it for national security purposes.
Now the FBI wants access to everyone's internet browser history, as long as its agents are looking for spies or terrorists; and again, it proposes that rather than present probable cause to a judge and seek a warrant as the Fourth Amendment requires, one FBI agent be authorized to issue a search warrant to another.
The federal government's antipathy to the Fourth Amendment is palpable and well-known — notwithstanding that everyone who works for the feds has taken an oath to uphold the Constitution, not evade or avoid it. Last week, FBI Director James Comey effectively told the Senate committee that is writing this damnable new legislation that complying with the Fourth Amendment is a pain in the neck and his agents could operate more efficiently without it.
Wake up, America. The Fourth Amendment is supposed to be a pain in the neck for the government.
The Fourth Amendment was expressly written to protect our individual right to privacy from the voracious and insatiable appetite of government to assault it. It was also written to ensure that government can seek evidence against bad guys, but it was meant to force the government to target them based on real evidence, not to let it sweep them up in a suspicionless net along with the innocent.
When Edward Snowden revealed the nature and extent of domestic spying on everyone in America three years ago, he revealed a secret that somehow 60,000 federal agents and contractors were able to keep. That secret was a novel and perverse interpretation of certain federal statutes so as to use them to justify spying on innocents.
But what we have here with this FBI request to access our browsing history — which reveals deeply personal, political, medical, legal and intimate data about us — is coming about openly through our elected representatives. It is not only the FBI that secretly wants this but also members of Congress who are on the verge of openly approving it.
And don't expect your internet service provider to tell you that the FBI has come calling, as this legislation would prohibit the service provider from telling you that your records have been accessed. This provision violates the First Amendment to the Constitution, which states that "Congress shall make no law … abridging the freedom of speech."
Wake up, America. How many congressional assaults on the Constitution will we tolerate?
Since the government obviously does not take its obligation to uphold the Constitution seriously, why bother with requiring one FBI agent to authorize another? Why not let any FBI agent search wherever he or she wants, break down any door, seize any records and invade anyone's privacy, lest compliance with the Constitution be a pain in the neck?
Wake up, America. The Constitution has become a pain in the neck to our personal liberties, because as a safeguard of them, it obviously no longer works.
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]]>Late last week, the inspector general of the State Department completed a year-long investigation into the use by Hillary Clinton of a private email server for all of her official government email as secretary of state. The investigation was launched when information technology officials at the State Department under Secretary of State John Kerry learned that Clinton paid an aide to migrate her public and secret State Department email streams away from their secured government venues and onto her own, non-secure server, which was stored in her home.
The migration of the secret email stream most likely constituted the crime of espionage — the failure to secure and preserve the secrecy of confidential, secret or top-secret materials.
The inspector general interviewed Clinton's three immediate predecessors — Madeleine Albright, Colin Powell and Condoleezza Rice — and their former aides about their email practices. He learned that none of them used emails as extensively as Clinton, none used a private server and, though Powell and Rice occasionally replied to government emails using private accounts, none used a private account when dealing with state secrets.
Clinton and her former aides declined to cooperate with the inspector general, notwithstanding her oft-stated claim that she "can't wait" to meet with officials and clear the air about her emails.
The inspector general's report is damning to Clinton. It refutes every defense she has offered to the allegation that she mishandled state secrets. It revealed an email that hadn't been publicly made known showing Clinton's state of mind. And it paints a picture of a self-isolated secretary of state stubbornly refusing to comply with federal law for venal reasons; she simply did not want to be held accountable for her official behavior.
The report rejects Clinton's argument that her use of a private server "was allowed." The report makes clear that it was not allowed, nor did she seek permission to use it. She did not inform the FBI, which had tutored her on the lawful handling of state secrets, and she did not inform her own State Department IT folks.
The report also makes clear that had she sought permission to use her own server as the instrument through which all of her email traffic passed, such a request would have been flatly denied.
In addition, the report rejects her argument — already debunked by the director of the FBI — that the FBI is merely conducting a security review of the State Department's email storage and usage policies rather than a criminal investigation of her. The FBI does not conduct security reviews. The inspector general does. This report is the result of that review, and Clinton flunked it, as it reveals that she refused to comply with the same State Department storage and transparency regulations she was enforcing against others.
Here is what is new publicly: When her private server was down and her BlackBerry immobilized for days at a time, she refused to use a government-issued BlackBerry because of her fear of the Freedom of Information Act. She preferred to go dark, or back to the 19th-century technology of having documents read aloud to her.
This report continues the cascade of legal misery that has befallen her in the past eight months. The State Department she once headed has rejected all of her arguments. Two federal judges have ordered her aides to testify about a conspiracy in her office to evade federal laws. She now awaits an interrogation by impatient FBI agents, which will take place soon after the New Jersey and California primaries next week. Her legal status can only be described as grave or worse than grave.
We know that Clinton's own camp finally recognizes just how dangerous this email controversy has become for her. Over the Memorial Day weekend, John Podesta, the chairman of Clinton's campaign, sent an email to her most important donors. In it, he recognizes the need to arm the donors with talking points to address Clinton's rapidly deteriorating support with Democratic primary voters.
The Podesta email suggests attempting to minimize Clinton's use of her private server by comparing it to Powell's occasional use of his personal email account. This is a risky and faulty comparison. None of Powell's emails from his private account — only two or three dozen — contained matters that were confidential, secret or top-secret.
Clinton diverted all of her email traffic to her private server — some 66,000 emails, about 2,200 of which contained state secrets. Moreover, Powell never used his own server, nor is he presently seeking to become the chief federal law enforcement officer in the land.
The inspector general who wrote the report was nominated by President Barack Obama and confirmed by the Senate in 2013, after Clinton left office. He did a commendable job — one so thorough and enlightening that it has highlighted the important role that inspectors general play in government today.
Today every department in the executive branch has, by law, an inspector general in place who has the authority to investigate the department — keeping officials' feet to the fire by exposing failure to comply with federal law.
If you are curious as to why the inspector general of the State Department during Clinton's years as secretary did not discover all of Clinton's lawbreaking while she was doing it, the answer will alarm but probably not surprise you.
There was no inspector general at the State Department during Clinton's tenure as secretary — a state of affairs unique in modern history; and she knew that. How much more knowledge of her manipulations will the Justice Department tolerate before enforcing the law?
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"Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." — Justice Louis Brandeis (1856-1941)
Last week, this column chronicled the startling admissions of lying by White House senior advisor Ben Rhodes. Rhodes readily acknowledged to The New York Times Magazine that he lied to the public and to members of Congress during the negotiations that produced the recent Iranian nuclear deal so as to temper the "irrational" fear that some senators and representatives had of the mullahs who run the government in Iran.
He was asked — not subpoenaed — to testify before the House Oversight and Government Reform Committee about his lying, and he refused to show up, claiming his lies were protected by executive privilege. Because he spoke publicly about this, he has no privilege, yet nothing further happened. The committee gave up the ghost.
Also last week, in a federal court in Brownsville, Texas, the government was caught lying again — this time by a federal judge. Here is the back story.
In 2012, President Barack Obama issued numerous executive orders directing the departments of Justice and Homeland Security to enforce a version of immigration law that the president himself had scripted after Congress declined to pass it.
The president crafted a path to permanent residence in the United States for undocumented immigrants who are the parents of children who were born here or are otherwise residents lawfully.
The president's plan would add between 4 million and 5 million people as lawful residents. That would add to the financial burdens of the states where these folks reside, because they are required by federal law to provide a social safety net — health care, education, safety, welfare — to all legal residents.
Hence, 26 states sued the federal government, arguing in effect that the president exceeded his constitutional powers when he issued his executive orders and that the immediate effect of their enforcement would be massive, unplanned, unfunded financial burdens on the states.
A federal judge agreed with the states and enjoined the president from enforcing his orders. During the course of the oral arguments in the case, the judge asked the lawyers from the Department of Justice who were representing the president whether the programs his executive orders established had yet begun. The lawyers replied that they had not.
On three more occasions, one orally in the same public courtroom and twice in written submissions to the court, the DOJ lawyers insisted that the president's programs had not yet begun. In reliance upon those assertions, the states asked only for an injunction going forward, not for an injunction on any applications being processed by the feds, because they were told that none existed.
The government lawyers lied.
Last week, we learned that the Department of Homeland Security has surreptitiously accepted applications from more than 100,000 undocumented immigrants for permanent residence under the terms of President Obama's unconstitutional executive orders.
The orders may be characterized as unconstitutional because the same federal judge to whom the DOJ lawyers lied, as well as a panel of the U.S. Court of Appeals for the 5th Circuit to which the DOJ appealed the injunction against the president, found them so. Those findings await a determination by the Supreme Court, which is expected by the end of next month.
The problem of lawyers lying to judges is extremely serious. Our system of litigation — lawyers present facts and argue about laws, and judges rely on the truthfulness of what the lawyers have told them — is built on trust. Because lawyers know the facts in their cases more intimately than judges do, judges rely on lawyers to tell them the truth.
At first, these DOJ lawyers lied. Then they lied about their lying. Then they reluctantly acknowledged that they had momentary lapses in understanding, an argument that the court rejected because of the repeated nature of their lying. The lawyers said the programs had not begun, when in fact they had — to a large degree.
The judge's response in the case was curious. He ordered the DOJ lawyers to take ethics classes. I would have done differently. Lying to the court is so severe a violation of the ethical rules, so disruptive of the moral order, that its significance is diminished by the so-called cure of ethics classes.
I would have barred all lawyers who lied to me from ever appearing in my courtroom, and I would have removed them from the case. I would also have referred what I knew about them to ethics prosecutors in the states and federal districts where they are admitted.
Lawyers have an obligation of candor to the judges before whom they appear. That duty is no less serious when the lawyers work for the government than when they work for private clients.
Because the government prosecutes people who lie to it and its liars almost never can be prosecuted, government lying is grave. It is equivalent to government lawbreaking because when people to whom the government lies — judges or litigants or members of Congress or the public — rely on those lies, they often do so to their detriment. They lose a right or an opportunity that often cannot be recaptured.
I have often asked rhetorically whether the government works for us or we work for the government. The answer to this inquiry is obvious. It is only a fiction that the government works for us.
Yet fear of the consequences of government lying should terrify anyone who believes in the rule of law and fair play. Those consequences can be as contagious as government lawbreaking.
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]]>Here is a quick pop quiz. What happens if we lie to the government? What happens if the government lies to us? Does it matter who does the lying?
Last year, the Obama administration negotiated an agreement with the government of Iran permitting Iran to obtain certain materials for the construction of nuclear facilities. It also permitted the release of tens of billions of dollars in Iranian assets that had been held in U.S. banks and that the courts had frozen, and it lifted trade sanctions. In exchange, certain inspections of Iranian nuclear facilities can occur under certain circumstances.
During the course of the negotiations, many critics made many allegations about whether the Obama administration was telling the truth to Congress and to the American people.
Was there a secret side deal? The administration said no. Were we really negotiating with moderates in the Iranian government, as opposed to the hard-liners depicted in the American media? The administration said yes. Can U.N. or U.S. inspectors examine Iranian nuclear facilities without notice and at any time? The administration said yes.
It appears that this deal is an executive agreement between President Barack Obama and whatever faction he believes is running the government of Iran. That means that it will expire if not renewed at noon on Jan. 20, 2017, when the president's term ends.
It is not a treaty, because it was not ratified by a two-thirds vote of the Senate, which the Constitution requires for treaties. Yet the Obama administration cut a deal with the Republican congressional leadership, unknown to the Constitution and unheard of in the modern era. That deal provided that the agreement would be valid unless two-thirds of those voting in both houses of Congress objected. They didn't.
Then last week, the president's deputy national security advisor for strategic communications, Ben Rhodes, who managed the negotiations with Iran, told The New York Times that he lied when he spoke to Congress and the press about the very issues critics were complaining about. He defended his lies as necessary to dull irrational congressional fears of the Iranian government.
I am not addressing the merits of the deal, though I think that the more Iran is re-accepted into the culture of civilized nations the more economic freedom will come about for Iranians. And where there is economic freedom, personal liberties cannot be far behind.
I am addressing the issue of lying. Rhodes' interview set off a firestorm of criticism and "I told you so" critiques in Capitol Hill, and the House Oversight and Government Reform Committee summoned him to explain his behavior. It wanted to know whether he told the truth to Congress and the public during the negotiations or whether he told the truth to The New York Times last week.
He apparently dreads answering that question, so he refused to appear and testify. One wonders how serious this congressional committee is, because it merely requested Rhodes' appearance; it did not subpoena him. A congressional subpoena has the force of law and requires either compliance or interference by a federal court. Rhodes' stated reason for not testifying is a claim of privilege.
What is a privilege? It is the ability under the law to hide the truth in order to preserve open communications. It is a judgment by lawmakers and judges that in certain narrowly defined circumstances, freedom of communication is a greater good than exposing the truth.
Hence the attorney/client and priest/penitent and physician/patient privileges have been written into the law so that people can freely tell their lawyers, priests and doctors what they need to tell them without fear that they will repeat what they have heard.
Executive privilege is the ability of the president and his aides to withhold from anyone testimony and documents that reflect military, diplomatic or sensitive national security secrets. This is the privilege that Rhodes has claimed.
Yet the defect in Rhodes' claim of privilege here is that he has waived it by speaking about the Iranian negotiations to The New York Times. Waiver — the knowing and intentional giving up of a privilege or a right — defeats the claim of privilege.
Thus, by speaking to the Times, Rhodes has admitted that the subject of his conversation — the Iranian negotiations — is not privileged. One cannot selectively assert executive privilege. Items are either privileged or not, and a privilege, once voluntarily lifted, cannot thereafter successfully be asserted.
The House Oversight and Government Reform Committee should subpoena Rhodes, as well as the Times reporter to whom he spoke, to determine where the truth lies.
It is a crime to lie to the government when communicating to it in an official manner. Just ask Martha Stewart. One cannot lawfully lie under oath or when signing a document one is sending to the government or when answering questions from government agents. Just ask Roger Clemens. Stated differently, if Rhodes told the FBI either what he told Congress or what he told The New York Times — whichever version was untrue — he would be exposed to indictment.
Ben Rhodes is one of the president's closest advisers. They often work together on a several-times-a-day basis. Could he have lied about this Iranian deal without the president's knowing it?
Does anyone care any longer that the government lies to the American people with impunity and prosecutes people when it thinks they have lied to it? Does the government work for us, or do we work for the government?
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]]>The bad legal news for Hillary Clinton continued to cascade upon her presidential hopes during the past week in what has amounted to a perfect storm of legal misery. Here is what happened.
Last week, Mrs. Clinton's five closest advisers when she was secretary of state, four of whom remain close to her and have significant positions in her presidential campaign, were interrogated by the FBI. These interrogations were voluntary, not under oath, and done in the presence of the same legal team which represented all five aides.
The atmosphere was confrontational, as the purpose of the interrogations is to enable federal prosecutors and investigators to determine whether these five are targets or witnesses. Stated differently, the feds need to decide if they should charge any of these folks as part of a plan to commit espionage, or if they will be witnesses on behalf of the government should there be such a prosecution; or witnesses for Mrs. Clinton.
In the same week, a federal judge ordered the same five persons to give videotaped testimony in a civil lawsuit against the State Department which once employed them in order to determine if there was a "conspiracy" — that's the word used by the judge — in Mrs. Clinton's office to evade federal transparency laws. Stated differently, the purpose of these interrogations is to seek evidence of an agreement to avoid the Freedom of Information Act (FOIA) requirements of storage and transparency of records, and whether such an agreement, if it existed, was also an agreement to commit espionage — the removal of state secrets from a secure place to a non-secure place.
Also earlier this week, the State Department revealed that it cannot find the emails of Bryan Pagliano for the four years that he was employed there. Who is Bryan Pagliano? He is the former information technology expert, employed by the State Department to trouble-shoot any of Mrs. Clinton's email issues.
Pagliano was also personally employed by Mrs. Clinton. She paid him $5,000 to migrate her regular State Department email account and her secret State Department email account from their secure State Department servers to her personal, secret, non-secure server in her home in Chappaqua, New York. That was undoubtedly a criminal act. Pagliano either received a promise of non-prosecution or an actual order of immunity from a federal judge. He is now the government's chief witness against Mrs. Clinton.
It is almost inconceivable that all of his emails have been lost. Surely this will intrigue the FBI, which has reportedly been able to retrieve the emails Mrs. Clinton attempted to wipe from her server.
While all of this has been going on, intelligence community sources have reported about a below-the-radar, yet largely-known debate in the Kremlin between the Russian Foreign Ministry and the Russian Intelligence Services. They are trying to come to a meeting of the minds to determine whether the Russian government should release some 20,000 of Mrs. Clinton's emails that it obtained either by hacking her directly or by hacking into the email of her confidante, Sid Blumenthal.
As if all this wasn't enough bad news for Mrs. Clinton in one week, the FBI learned last week from the convicted international hacker, who calls himself Guccifer, that he knows how the Russians came to possess Mrs. Clinton's emails; and it is because she stored, received and sent them from her personal, secret, non-secure server.
Mrs. Clinton has not been confronted publicly and asked for an explanation of her thoughts about the confluence of these events, but she has been asked if the FBI has reached out to her. It may seem counter-intuitive, but in white collar criminal cases, the FBI gives the targets of its investigations an opportunity to come in and explain why the target should not be indicted.
This is treacherous ground for any target, even a smart lawyer like Mrs. Clinton. She does not know what the feds know about her. She faces a damned-if-she-does and damned-if-she-doesn't choice here.
Any lie and any materially misleading statement — and she is prone to both — made to the FBI can form the basis for an independent criminal charge against her. This is the environment that trapped Martha Stewart. Hence the standard practice among experienced counsel is to decline interviews by the folks investigating their clients.
But Mrs. Clinton is no ordinary client. She is running for president. She lies frequently. We know this because, when asked if the FBI has reached out to her for an interview, she told reporters that neither she nor her campaign had heard from the FBI; but she couldn't wait to talk to the agents.
That is a mouthful, and the FBI knows it. First, the FBI does not come calling upon her campaign or even upon her. The Department of Justice prosecutors will call upon her lawyers — and that has already been done, and Mrs. Clinton knows it. So her statements about the FBI not calling her or the campaign were profoundly misleading, and the FBI knows that.
Mrs. Clinton's folks are preparing for the worst. They have leaked nonsense from "U.S. officials" that the feds have found no intent to commit espionage on the part of Mrs. Clinton. Too bad these officials — political appointees, no doubt — skipped or failed Criminal Law 101. The government need not prove intent for either espionage or for lying to federal agents.
And it prosecutes both crimes very vigorously.
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]]>Last weekend, Hillary Clinton dispatched her husband, former President Bill Clinton, to offer a defense of her alleged espionage. The espionage allegations against her are that in order to escape public and Obama administration scrutiny, she had all of her emails as secretary of state diverted from a secure government server to a non-secure server in her home in Chappaqua, New York, and, in so doing, failed to protect state secrets in at least 2,200 instances during her four-year tenure.
The essence of her husband's defense is that the secrets were not secrets when she saw them and the investigation of her is all "a game."
We know that the FBI is getting closer to Hillary Clinton, because Bill Clinton had not addressed her email issues publicly before last weekend. The defense he offered belies the facts and the law.
He argued that prosecuting his wife over her emails is akin to prosecuting someone for driving a car in a 50 mile-per-hour zone at 40 mph because the police have arbitrarily and without notice changed the speed limit to 35 mph.
The implication in his argument is that Mrs. Clinton's emails were retroactively classified as confidential, secret or top-secret after she received or sent them and therefore she had no notice of their sensitivity.
His argument is unavailing for two reasons. The first is that it is untrue. Emails are confidential, secret or top-secret at the time they are created, whether marked or not.
The second reason is that Mrs. Clinton signed an oath on her first full day as secretary of state — after she received a two-hour tutorial from two FBI agents on the proper care and lawful handling of state secrets. In that oath, she acknowledged that she had an obligation to recognize and protect state secrets on the basis of the sensitive nature of the information contained in them — whether they bore classified warnings or markings or not.
State secrets are materials that, if revealed, could harm the national security of the United States.
Bill Clinton's speed zone example, if true, would be a profound violation of due process, the foundation of which is notice. In a free society, for a prosecution to be successful, the government must show that the defendant had notice of the behavior expected of her. Hence, changing the speed limit without notice would be a profound violation of due process and fatal to a prosecution for speeding.
His example is not even remotely analogous to Mrs. Clinton's behavior while secretary of state.
Why did he address this last Saturday?
He probably did so for two reasons. The first is that people in Hillary Clinton's inner circle from her time as secretary of state have been offered interviews by the FBI. They all hired the same lawyer, and with that lawyer, they are in the process of answering FBI questions. Bill Clinton — for whom the FBI once worked — knows that the investigation will soon be at his wife's doorstep, and he wanted to get her version out to Democratic primary voters.
The second reason for Mr. Clinton's broadside relates to an obscure but profound admission by the Department of Justice (DOJ). Here is the back story.
One of the 39 Freedom of Information Act (FOIA) lawsuits brought in connection with Mrs. Clinton's email scandal was filed recently by Jason Leopold, a reporter for Vice News. He seeks copies of the emails Clinton tried unsuccessfully to wipe clean from her server, as well as copies of communications between the DOJ and Mrs. Clinton.
The DOJ moved to dismiss his lawsuit, and in support of its motion, it filed a secret affidavit with the court, signed by an FBI agent familiar with the bureau's investigation of Mrs. Clinton. In its brief filed the day before Mr. Clinton made his silly speeding prosecution analogy, the DOJ — which also once worked for him — characterized the secret affidavit as a summary of the investigation of Mrs. Clinton. The DOJ argued that compliance with Leopold's FOIA request would jeopardize that investigation by exposing parts of it prematurely.
In the same brief, the DOJ referred to the investigation of Mrs. Clinton as a law enforcement proceeding.
That was the first public acknowledgment by the DOJ that it is investigating criminal behavior — a law enforcement proceeding — and it directly contradicts Mrs. Clinton's oft-repeated assertions that the FBI investigation is merely a routine review of the State Department's classification procedures.
Many in the legal and intelligence communities have discounted her assertions because reviewing classification procedures of the State Department is not a function of the FBI, but now we have the government's own words that its investigation of Mrs. Clinton's email handling is one implicating law enforcement. Since that late Friday filing, Mrs. Clinton has ceased referring publicly to the FBI probe as an evaluation of the State Department's security procedures.
Perhaps she should tell her husband what was on that server before she tries to use him as a not-so-secret weapon.
Perhaps she now recognizes how hard-pressed she will be to claim to the FBI or to a jury that she did not know that satellite photos of a North Korean nuclear facility or transcripts from wiretaps of Yemeni intelligence agents' cellphone calls or the itinerary of the late U.S. Ambassador to Libya Chris Stevens in the days before his murder or true names of American undercover intelligence agents — all of which were in her emails — were state secrets.
Perhaps she knows now that this is not a game.
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The post How a FOIA Request into Hillary Clinton's Emails Revealed a Criminal Investigation appeared first on Reason.com.
]]>Would all of our lives be safer if the government could break down all the doors it
wishes, listen to all the conversations it could find and read whatever emails and text messages it could acquire? Perhaps. But who would want to live in such a society?
To prevent that from happening here, the Framers ratified the Fourth Amendment, which is the linchpin of privacy and was famously called by Justice Louis Brandeis "the right to be let alone — the most comprehensive of rights and the right most valued by civilized men." He wrote those words in his dissent in the first wiretapping case to reach the Supreme Court, Olmstead v. United States, in 1928.
Roy Olmstead had been convicted for bootlegging on the basis of words he used in overheard telephone conversations. Because he had used a phone at his place of work that the government had tapped without breaking and entering his workplace, the high court ruled — despite the fact that the government had not obtained a warrant — that he had no right to privacy. Brandeis dissented.
Over time, the Brandeis dissent became the law. The Fourth Amendment, which protects the privacy of all in our "persons, houses, papers, and effects," was interpreted to cover telephone conversations and eventually emails and text messages. So today, if the government wants information contained in those communications, it needs to obtain a search warrant, which the Fourth Amendment states can only be given by a judge — and only upon a showing of probable cause of evidence of a crime contained in the communications it seeks.
If the government does not obtain a search warrant and listens to phone conversations or reads emails or text messages nevertheless and attempts to use what it heard or read to acquire other evidence or directly in the prosecution of a defendant, that is unlawful. That type of information is known as the fruit of the poisonous tree.
Evidence procured that is the fruit of the poisonous tree has been inadmissible in federal criminal prosecutions in the United States for the past 100 years and in state criminal prosecutions for the past 50 years.
Until now.
Now comes the super-secret court established by the Foreign Intelligence Surveillance Act (FISA), reaffirmed by Congress last year under the so-called USA Freedom Act. Beware the names of federal statutes, as they often produce results that are the opposite of what their names imply; and this is one of them.
Congress has unconstitutionally authorized the FISA court to issue search warrants on the basis of governmental need — a standard that is no standard at all because the government can always claim that it needs what it wants. The FISA court does not require a showing of probable cause for its warrants, because it accepts the myth that the government is listening to or reading words by foreign people for foreign intelligence purposes only, not for prosecutorial purposes.
Never mind that Congress cannot change the plain meaning of the Constitution. Never mind that the Fourth Amendment protects all people in the United States, American or foreign, from all parts of the government for all purposes, not just criminal prosecutions.
Yet the FISA court still grants general warrants — look where you wish and seize what you find — exposing our innermost thoughts to the prying eyes of the intelligence community in direct contravention of the Fourth Amendment.
Enter the USA Freedom Act. One of its selling points to Congress was that it would permit the FISA court to appoint a lawyer to challenge, hypothetically, some of its behavior. The court recently made such an appointment, and the lawyer appointed challenged the policy of the National Security Agency (NSA), the federal government's domestic spying agency, of sharing data it acquires via the unconstitutional FISA warrants with the FBI. She argued that the data sharing goes far beyond the stated purpose of the FISA warrants, which is to gather foreign intelligence data from foreign people, not evidence of domestic crimes of anyone whose emails might be swept up by those warrants.
The challenge revealed publicly what many of us have condemned for years: The NSA actually makes its repository of raw data from emails and text messages available for the FBI to scour at will, without the FBI's obtaining a warrant issued by a judge pursuant to the Fourth Amendment.
In an opinion issued in November but kept secret until last week, the FISA court rejected the hypothetical challenge of its own appointee and ruled that the NSA could continue to share what it wants with the FBI.
There are several problems with this ruling. The first is the hypothetical nature of the challenge. Federal courts do not exist in a vacuum. They do not render advisory opinions. They can only hear real cases and real controversies involving real plaintiffs and real defendants, not hypothetical ones as was the case here.
The whole apparatus of hypothetical challenge and hypothetical ruling is constitutionally meaningless. It was the moral and legal equivalent of a law school moot court oral argument. Yet federal and soon state law enforcement will interpret it as giving cover to the NSA/FBI practice of data sharing, which is clearly unconstitutional because it is the use of fruit from a poisonous tree.
FISA and the USA Freedom Act were enacted under the premise — the pretense — that the data collected under them would be used for foreign intelligence purposes only so that attacks could be thwarted and methods could be discovered. Yet the use by the FBI of extraconstitutionally obtained intelligence data for ordinary criminal prosecutions defies the stated purposes of the statutes and contradicts the Fourth Amendment.
If this is keeping us safe, who or what will safeguard our freedoms? Who will keep us safe from those who have sworn to uphold the Constitution yet defy it?
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]]>In 2014, President Barack Obama signed
12 executive orders directing various agencies in the departments of State, Justice and Homeland Security to refrain from deporting some four million adult immigrants illegally present in the United States if they are the parents of children born here or legally present here and if they hold a job, obtain a high-school diploma or its equivalent, pay taxes and stay out of prison.
Unfortunately for the president, the conditions he established for avoiding deportation had been rejected by Congress.
In response to the executive orders, 26 states and the House of Representatives sued the president and the recipients of the orders, seeking to prevent them from being enforced. The states and the House argued that the president effectively rewrote the immigration laws and changed the standards for the deportation of unlawfully present adult immigrants.
The states also argued that because federal law requires them to offer the same safety net of social services for those illegally present as they do for those lawfully present, the financial burden that the enforcement of those orders would put upon them would be far beyond their budgetary limits. Moreover, they argued, enforcement of the president's orders would effectively constitute a presidential command to the states to spend their own tax dollars against their wishes, and the president lacks the power to do that.
In reply, the president argued that the literal enforcement of the law creates an impossible conundrum for him. He does not want to deport the parents of American children, as that destroys families and impairs the welfare of children; and he cannot deport children who were born here, as they are American citizens. Hence his novel resolution.
The case was filed in Texas, where a federal district court judge agreed with the states and signed an order that prohibited the feds from enforcing the president's orders, pending a full trial. The feds appealed.
The U.S. Court of Appeals for the 5th Circuit in New Orleans upheld the injunction against the president. In so doing, it agreed with the states that the financial burden on them that would come from the enforcement of these executive orders would be unconstitutional. It also agreed with the House of Representatives that the president exceeded his authority under the Constitution and effectively rewrote the laws.
This week, the Supreme Court heard the feds' appeal. Because the seat formerly occupied by the late Justice Antonin Scalia for 30 years is still vacant, the court has just eight justices — for the most part, four conservatives and four liberals. A tie vote in the court, which appears likely in this case, will not set any precedent, but it will retain the injunction against the president. The most recent time this happened was 1952, when the court enjoined President Harry Truman from seizing steel mills during the Korean conflict.
Though the issue here is immigration, the constitutional values underlying the case are more far-reaching. Since the era of Woodrow Wilson — accelerated under Franklin D. Roosevelt, enhanced under Lyndon B. Johnson and brought over the top under George W. Bush — Congress has ceded some of its powers to the president. It has enabled him to borrow unlimited amounts of money and to spend as he sees fit. It has looked the other way when presidents have started wars, arrested Americans without charge or trial, and even killed Americans.
Can Congress voluntarily give some of its powers to the president, either by legislation or by impotent acquiescence, when the president takes them?
In a word, no.
The purpose of the division of powers — Congress writes the laws, the president enforces the laws, and the courts interpret them and decide what they mean — is to preserve personal liberty by preventing the accumulation of too much power in one branch of government.
The 26 states and the House told the Supreme Court this week that the president is enforcing the laws not as Congress wrote them but as he wishes them to have been written, because he actually directed officials of the executive branch to enforce the versions of the laws that he rewrote instead of the laws on the books.
That arguably violates his oath of office, in which he agreed that he would "faithfully" enforce all federal laws. We know from his notes that James Madison, when he drafted the presidential oath, insisted that the word "faithfully" be inserted so as to impress upon presidents their obligation to enforce laws even if they disagree with them.
During oral argument in the court this week, there was a bizarre exchange over terminology that the president used in his orders. In a weird series of questions, Chief Justice John Roberts Jr. asked whether the president's executive orders could be salvaged constitutionally by excising or changing a few words. This was improper because it treated an executive order as if it were a statute. It is not the job of the court to find ways to salvage executive orders as it is to salvage statutes, because the Constitution has given "all legislative Powers" to Congress and none to the president.
Statutes are presumed to be constitutional. Executive orders that contradict statutes are presumed to be unconstitutional, and the court has no business trying to save them.
All presidents from time to time have exercised discretion upon individuals when it comes to enforcing laws that pose hardships. But none has done so for 4 million people, and none has written substitute laws of his own making. Until now.
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]]>President Barack Obama's recent remarks to
my Fox News colleague Chris Wallace about Hillary Clinton's email issues were either Machiavellian or dumb. It is difficult to tell from them whether he wants the mountain of evidence of her criminal behavior presented to a federal grand jury or whether he wants her to succeed him in the White House.
He cannot have both.
His efforts to minimize his former secretary of state's diversion of emails from government-secured servers to her own non-secure home server by calling it "careless" may actually harm her in the eyes of the public or even serve as a dog whistle to the FBI. That's because carelessness is a species of negligence, and espionage, which is the failure to safeguard state secrets by removing them from their proper place of custody, is the rare federal crime that can be proved by negligence — to be precise, gross negligence.
Gross negligence is the failure to perform a high legal duty with the great probability of an improper result — for example, driving a car 90 miles per hour in New York's Times Square. The high legal duty Clinton had was to safeguard state secrets; the improper result is the exposure of those secrets contained in her emails.
What did she do that was criminal, and who was harmed by her behavior?
Clinton knowingly diverted all of her governmental emails from secure government servers to her own non-secure server in her New York residence. Among the 60,000 emails she diverted were 2,200 that contained state secrets. Because the essence of espionage is the removal of secrets to non-secure venues, the crime is complete upon removal. So Obama's statement in the Wallace interview that Clinton caused no harm is irrelevant. In espionage cases, the government need not prove that the defendant caused any harm.
Obama's further effort in the Wallace interview to minimize the classification of secrets into the statutory categories of "confidential," "secret" and "top secret" by snarkily commenting that "there's classified and then there's classified" is not what one would expect from someone who has sworn to take care that all federal laws are enforced.
Obama has interpreted that duty so as to permit his Department of Justice to prosecute for espionage both a sailor when he took a selfie inside a nuclear submarine and sent it to his girlfriend and a Marine lieutenant who correctly warned his superiors about an al-Qaida operative masquerading as an Afghan cop in an American encampment but mistakenly used his Gmail account to send the emergency warning.
The evidence of Clinton's failure to safeguard state secrets is overwhelming because of the regularity of its occurrence. The evidence is well-grounded, as some of the secrets were too grave for the FBI to review and all came from her own server. And the evidence is sufficient to indict and to convict because it was obtained legally and shows a four-year pattern of regular, consistent, systematic violation of the laws requiring safeguarding.
Obama's suggestion that some secrets were not really secret is also irrelevant, because Clinton, like the president, swore to recognize secrets and to keep them secret, no matter her opinion of them.
The FBI knows this and is taking it far more seriously than the president or Clinton.
Just last week, the team investigating Clinton sought and received the extradition to the U.S. of a man who was imprisoned in Romania for computer hacking. One of those he hacked is Clinton's confidant Sid Blumenthal, to whom she sent many emails containing state secrets. What will the hacker tell the feds he saw?
Clinton's surrogates began taking her legal plight seriously in the past few weeks by arguing that her behavior was no different from that of other former high-ranking executive branch officials who occasionally and accidentally took top-secret documents home or discussed top-secret information in non-secure emails and that the consequences for them were tepid or nonexistent.
Yet there is no comparison between these occasional lapses and the planned and paid-for four-year diversion of secrets that Clinton orchestrated. Moreover, there is no instance of unprosecuted behavior that her supporters can cite that involves the sheer volume and regularity of the failure to safeguard that we see here.
Though the government need not prove intent, there is substantial evidence of Clinton's intent to commit espionage from three sources. One is Clinton's email instructing an aide to remove the "secret" designation from a document and send it to her from one non-secure fax machine to another. The second is the Blumenthal hacking incidents, which occurred during her tenure as secretary of state and which did not stop her from emailing him from her home server. The third is a federal rule that permits the inference of intent from a pattern of bad behavior, of which there is ample evidence in this case.
On the same weekend that the president was damning Clinton with faint praise and cynically offering what he must have known were irrelevant legal defenses, Clinton continued her pattern of persistent public laughing about and dismissing the significance of the FBI investigation of her.
That attitude — which is recorded and documented by the FBI — must have caused many of those investigating her to conclude that she understands the predicament she is in but is minimizing it. Or she may be a congenital liar who is lying to herself. Either way, they await with eager anticipation their interrogation of her, should she foolishly submit to one.
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]]>What if the latest craze among the big-government
crowd in both major political parties is to use the power of government to force employers to pay some of their employees more than their services are worth to the employers?
What if this represents an intrusion by government into the employer-employee relationship? What if this consists of the government's effectively saying that it knows the financial worth of employees' services better than the employers and the employees do?
What if the minimum wage, now on the verge of being raised to $15 per hour everywhere in the land, is really the government's using threats of ruin and force to transfer wealth? What if the $15-per-hour figure is based on a political compromise rather than on free market forces or economic realities?
What if these wealth transfers will have profound unintended economic consequences and will negatively affect everyone?
What if one of the politically intended consequences is that the employees whose salaries will rise will show gratitude not to their employers, but to the politicians who will have forced the employers to pay them more by voting for those politicians?
What if the right of an employee to sell labor by going to work and the right of an employer to purchase that labor by paying a salary are part of the natural right to exchange goods and services, which the Constitution was written to protect? What if during America's most prosperous periods, that right was protected by the courts?
What if there are clauses in the Constitution that protect that right but the modern courts have ignored them? What if the Constitution prohibits the government from interfering with freely entered-into contracts but the government does so anyway? What if the courts have approved this?
What if the Constitution prohibits the government from taking property from people without charging them with wrongdoing and proving the charge to a jury but the government does so anyway? What if the courts have declined to interfere with all this theft?
What if it is none of the government's business how an employer and an employee decide on salary? What if the employer and the employee know far more about the worth of the employee's services and the needs of the employer than the politicians in the government do?
What if the government has fundamental misunderstandings of the way businesses earn money, create wealth and pay salaries? What if the government's mindset is stuck on the governmental economic model? What if that model has no competition, guaranteed revenue and no creation of wealth?
What if that governmental mindset is one of control and central planning rather than appealing to the needs of consumers by providing goods and services better, faster and more cheaply than the competition? What if the government has no need to be better, faster and cheaper because taxpayers are forced to pay it for services they often don't use and the government has no competition?
What if forcing employers to pay employees more than their services are worth results in higher prices for the goods and services the employers produce? What if the effect of the minimum wage rise is to transfer wealth not from employers to employees but from consumers to employees? What if the rising prices of goods and services, caused by the forced increase in wages, put some of those goods and services beyond the reach of some folks who rely upon them?
What if the folks who can no longer afford some goods and services on which they have come to rely are the very same people whom the politicians have boasted they are helping by the increase in the minimum wage? What if the politicians who have done this do not know what they are talking about? What if they believe they can use minimum wage increases to bribe the poor for votes—just as they bribe the wealthy with bailouts and the middle class with tax cuts?
What if there are other unintended consequences to the governmental imposition of a minimum wage? What if, rather than pay employees more than they are worth, employers stop employing some of them? What if this results in higher unemployment? What if the rise in the minimum wage has the unintended consequence of harming the folks it is supposed to help?
What if the poor are better off being gainfully employed and earning less than $15 an hour, with an opportunity for advancement, than not working, earning nothing and relying on welfare? What if that welfare burden adds to already overtaxed state budgets?
What if states raise taxes to care for the newly unemployed? What if the newly unemployed lose the self-esteem they once enjoyed when they were gainfully employed?
What if all this came about not because of market forces, such as supply and demand, and not because people worked harder and produced more but because of lawless, greedy politicians—heedless of basic economics—who think they can write any law, regulate any behavior and tax any event without adverse consequences?
What if the politicians who caused this did so just to win the votes of those they promised to help? What if these politicians only helped themselves? What if the minimum wage increase is a fraud? What do we do about it?
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]]>The FBI investigation of former Secretary of State
Hillary Clinton's failure to protect state secrets contained in her emails has entered its penultimate phase, and it is a dangerous one for her and her aides.
Federal law enforcement sources have let it be known that federal prosecutors and the FBI have completed their examination of raw data in the case. After the FBI acquires raw data—for example, the nature and number of the state secrets in the emails Clinton failed to protect or the regular, consistent, systematic nature of that failure—prosecutors and agents proceed to draw rational inferences from that data.
Then they proceed to corroborate those inferences, looking for other sources to support or even to contradict them. With one exception, all of this work has been done with neutral sources of evidence—documents, email metadata, government records and technical experts.
The exception is Bryan Pagliano, the one member of Clinton's inner circle who, with either a written promise of non-prosecution or an order of immunity from a federal judge, began to cooperate with federal prosecutors last fall.
Pagliano has explained to federal prosecutors the who, what, when, how and why he migrated an open State Department email stream and a secret State Department email stream from government computers to Clinton's secret server in her home in Chappaqua, New York. He has told them that Clinton paid him $5,000 for his services.
He has also told some of the FBI agents assigned to this case that Clinton herself was repeatedly told by her own State Department information technology experts and their colleagues at the National Security Agency that her persistent use of an off-the-shelf BlackBerry was neither an effective nor an acceptable means of receiving, transmitting or safeguarding state secrets. Little did they know how reckless she was with government secrets, as none were apparently then aware of her use of a non-secure secret server in Chappaqua for all of her email uses.
We know that the acquisition and corroboration phase of the investigation has been completed because the prosecutors have begun to ask Clinton's top aides during her time as secretary of state to come in for interviews. This is a delicate and dangerous phase for the aides, all of whom have engaged counsel to represent them.
Here are the dangers.
The Department of Justice (DOJ) will not reveal to the aides or their lawyers what it knows about the case or what evidence of criminal wrongdoing, if any, it has acquired on each of them. Hence, if they submit to an FBI interview, they will go in "blind." By going in blind, the aides run the risk of getting caught in a "perjury trap." Though not under oath, they could be trapped into lying by astute prosecutors and aggressive FBI agents, as it is a crime—the equivalent of perjury—to lie to them or materially mislead them.
For this reason, most white-collar criminal defense lawyers will not permit their clients to be interviewed by any prosecutors or FBI agents. Martha Stewart's lawyers failed to give her that advice, and she went to prison for one lie told in one conversation with one FBI agent.
After interviewing any Clinton aides who choose to be interviewed, the DOJ personnel on the case will move their investigation into its final phase, in which they will ask Clinton herself whether she wishes to speak with them. The prosecutors will basically tell her lawyers that they have evidence of the criminal behavior of their client and that before they present it to a grand jury, they want to afford Clinton an opportunity blindly to challenge it.
This will be a moment she must devoutly wish would pass from her, as she will face a damned-if-you-do, damned-if-you-don't dilemma.
Here is her dilemma.
If she were to talk to federal prosecutors and FBI agents, they would catch her in many inconsistencies, as she has spoken with great deception in public about this case. She has, for example, stated many times that she used the private server so she could have one mobile device for all of her emails. The FBI knows she had four mobile devices. She has also falsely claimed publicly and under oath that she neither sent nor received anything "marked classified." The FBI knows that nothing is marked classified, and its agents also know that her unprotected secret server transmitted some of the nation's gravest secrets.
The prosecutors and agents cannot be happy about her public lies and her repeated demeaning attitude about their investigation, and they would have an understandable animus toward her if she were to meet with them.
If she were to decline to be interviewed—a prudent legal but treacherous political decision—the feds would leak her rejection of their invitation, and political turmoil would break loose because one of her most imprudent and often repeated public statements in this case has been that she can't wait to talk to the FBI. That's a lie, and the FBI knows it.
Some Democrats who now understand the gravity of the case against Clinton have taken to arguing lately that the feds should establish a different and higher bar—a novel and unknown requirement for a greater quantum of evidence and proof of a heavier degree of harm—before Clinton can be prosecuted. They have suggested this merely because she is the likely Democratic presidential nominee.
The public will never stand for that. America has a bedrock commitment to the rule of law. The rule of law means that no one is beneath the law's protections or above its requirements. The DOJ is not in the business of rewriting the law, but the Democrats should get in the business of rethinking Clinton's status as their presumptive presidential nominee, lest a summer catastrophe come their way.
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]]>On Feb. 7, 1946, Arthur Terminiello, a Roman Catholic priest who was a fierce opponent of communism and believed that President Harry Truman was too comfortable with it, gave an incendiary speech in a Chicago hall that his sponsors had rented.
The hall held about 800 people, but nearly 2,400 showed up. Father Terminiello's opponents outnumbered his supporters by a two-to-one ratio. The atmosphere in the hall was electric, with almost everyone present taking sides for or against this priest, all under the watchful eyes of Chicago police.
The speech delighted the priest's supporters and enraged his detractors. When it became apparent that violence might break out, the Chicago police approached Terminiello while he was speaking and asked him to stop and leave the building.
He refused to leave and resumed his speech. The police prediction soon came to pass. The fiery priest ignited the hatred of his adversaries, many of whom seemed to have come to that venue to silence him. The shouters hurled chairs, rushed the stage and attempted to attack him.
The police safely escorted Terminiello out of the hall and then, in the presence of the many rioters who by now had spilled out onto a public street, arrested him for inciting a riot. The charge was defined in Illinois in the mid-1940s so as to criminalize any behavior that intentionally arouses the public to anger or brings about public unrest.
The police did not arrest any of the rioters who smashed windows, destroyed the stage and assaulted the priest. They saw him arrested for his words that they hated.
Terminiello was tried and convicted. After his conviction had been upheld by the Illinois Supreme Court, he appealed to the U.S. Supreme Court, which reversed his conviction. In so doing, the high court saved the First Amendment from authoritarian impulses that sought to narrow its scope, and ushered in the modern judicial understanding that has informed the present-day parameters of the freedom of speech.
The ruling generally barred the punishment of speakers who are expressing political opinions and held that the First Amendment needs breathing room; and breathing room contemplates that some people will hate what they hear and articulate that hatred.
The court warned the police against permitting audiences to silence speakers, what lawyers and judges call "the heckler's veto." Thus, the police today cannot throw up their hands and permit a speaker to be silenced as they did to Father Terminiello. They have an affirmative obligation to take all reasonable steps to protect the speaker's right to speak, the audience's right to hear and the protesters' right to protest.
Fast-forward to last Saturday,
also in Chicago, when Donald Trump canceled a rally and said he did so because he feared that protesters would disrupt it and some folks might be injured. Was this an example of the heckler's veto?
The legal issues here are complex and subtle, involving property rights and free speech. As a lessee of a government-owned building for his rally venue, Trump could not prevent any person from entering or remaining because of the person's political views.
However, he could have asked the police to employ reasonable force to remove those whose behavior made it impossible for him to use the venue for the principal purpose for which he leased it. Since the First Amendment requires breathing room, the police must be extremely tolerant of protesters and may remove only those whose behavior physically prevents the use for which the venue was leased.
Stated differently, protest of political speech is itself protected speech, but protest cannot be so forceful or dominant that it vetoes the speaker.
What about the allegations that Trump himself is responsible for the violence at some of his rallies? If Trump publicly demands violence and there is no time or ability for any speech to neutralize his demands and the demanded violence takes place, his speech is unprotected and he can be prosecuted for incitement to riot. This is the modern rule that holds that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to rebut or neutralize it.
When there is no time between the demand for violence and the responsive reactive violence, the speaker is liable for the violence he demanded. But if there is time for more speech to counsel against the violence, even if no neutralizing speech is actually uttered, the speaker cannot be prosecuted. And before any prosecution for speech may commence, the court must eliminate every possible lawful interpretation of the speaker's words.
All these rules further the whole purpose of the First Amendment. It is to recognize, codify and protect the natural human right to form thought and to express the thoughts, and to encourage open, wide, robust, challenging speech about the government, uttered without a permission slip, free from government interference and without personal hesitation.
In the case of the canceled Trump rally last weekend, many fingers have been pointed. The Chicago police claim they never advised Trump to cancel. The Secret Service claims the same. Trump says he was the victim of ideologically driven fanatics who wanted to silence him, just as their predecessors did to Father Terminiello. If there is ever litigation over this, a jury will decide the facts.
But the law is clear. The First Amendment tolerates the maximum possible public discourse, disagreement and confrontations; and it commands the government to protect the values it embodies.
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]]>What if Hillary Clinton is in legal hot water and she knows it but won't admit it? What if she has decided to go on the offensive and make her case that she did nothing unlawful with her emails that contained state secrets?
What if the essence of her defense is that other secretaries of state used non-secure email devices and thus it was lawful for her to do so, as well as the point that none of her emails was "marked classified" at the time she sent or received them? What if these defenses do not hold up to even cursory examination?
What if the other secretaries of state to whom she refers are Colin Powell and Condoleezza Rice? What if neither of them diverted all of their emails to a private server? What if neither of them sent or received state secrets—secrets that under the law of the land are marked "confidential," "secret" or "top secret," not "classified"—using a non-secure email account?
What if neither of them hired an information technology expert and paid him to divert both a standard State Department email stream and a secret State Department email stream to a private server in one of their homes?
What if neither Powell nor Rice is currently running for president? What if neither Powell nor Rice has had his or her behavior as secretary of state referred to the FBI for a criminal investigation by the inspector general of the State Department?
What if the law of the land is that a document or email contains state secrets by virtue of the information or data in the document or email and not by virtue of any warning label? What if the legal definition of a "state secret" in the U.S. is "information the revelation of which could cause harm to the security of the United States"?
What if it is the law of the land that people in the government to whom state secrets are entrusted are required to recognize the secrets when they see them and protect them from intentional or inadvertent revelation?
What if it is the law of the land that everyone in the government to whom state secrets are entrusted receives a multi-hour tutorial from the FBI on how to protect state secrets? What if the successful completion of that tutorial is a legal prerequisite to the receipt of a national security clearance and thus the receipt of state secrets?
What if that tutorial reminds the people to whom secrets are being reposed that it is their legal obligation to recognize and accept and understand the law before they can receive any state secrets? What if, in order to confirm that understanding, all people who receive the tutorial are required to sign an oath at the end of the tutorial recognizing, accepting and understanding the law and agreeing to be bound by it? What if Clinton signed just such an oath?
What if Clinton had no intention of complying with the oath she signed at the time she signed it? What if we know that because we know she hired the information technologist to divert her emails the same week she received the FBI tutorial? What if she never told the FBI that she planned to divert all her emails—including those that would contain state secrets—to a private non-secure email server in her home?
What if it is the law of the land that the failure to secure state secrets is a felony, known as espionage? What if it is the law of the land that espionage can be committed by a person who intends to expose state secrets or by a person who doesn't care if she exposes state secrets? What if the FBI explained to Clinton in her first day as secretary of state that the grossly negligent exposure of state secrets constitutes espionage?
What if before Clinton was secretary of state, she was a U.S. senator from New York for eight years? What if during that time, she was a member of the Senate Armed Services Committee? What if during her time in the Senate, she was exposed to hundreds of military-related state secrets?
What if Clinton is smart enough and shrewd enough and experienced enough to recognize a state secret when she sees one?
What if the FBI has seen emails in which Clinton ordered subordinates deliberately to avoid State Department secure channels of communications and to send state secrets to her through channels she knew were not secure? What if Clinton passed on state secrets to others who had no security clearances? What if she did so knowing she was sending state secrets from her non-secure server to other non-secure servers?
What if Clinton sent or received more than 2,000 emails that contained state secrets? What if she authored more than 100 of them herself? What if some of the 2,000 emails were so secret that the FBI agents investigating her lack the security clearances to view those emails?
What if Clinton did all this so that she could keep her behavior as secretary of state secret and away from all officials in the State Department outside her inner circle, away from the president, and away from the American people? What if she orchestrated and carried out a conspiracy to violate the Espionage Act?
What if the FBI is onto her? What if the Democrats are not?
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]]>Surely, Hillary Clinton hopes for the happy conclusion to the maddening string of primaries and caucuses that have exhausted her. Surely, she hopes to be the presidential nominee of the Democratic Party this year. And surely, she hopes to be elected president. These hopes are realistic probabilities in her own mind. But if she is hoping for the end to her legal woes, that is a false hope—and she knows it.
The relentless barrage of bad legal news for Clinton, which has been relegated to below-the-fold stories because of the primary news position of the presidential primary contests, must keep her and her lawyers up late at night. While her husband has been arguing with military veterans at her political rallies and while Marco Rubio and Donald Trump have been mocking each other's body parts, a series of curious developments has occurred in the Clinton email scandal.
It is fair to call this a scandal because it consists of the public revelation of the private and probably criminal misdeeds of the nation's chief diplomat during President Barack Obama's first term in office. Clinton's job as secretary of state was to keep secrets. Instead, she exposed them to friend and foe. The exposure of state secrets, either intentionally or negligently, constitutes the crime of espionage. For the secretary of state to have committed espionage is, quite simply, scandalous.
We are not addressing just a handful of emails. To date, the State Department has revealed the presence of more than 2,000 emails on her private server that contained state secrets—and four that were select access privilege, or SAP. The SAP emails require special codes in order to access them. The codes change continually, and very few people in the government have the codes. SAP is a sub-category of "top secret," and it constitutes the highest level of protected secrecy, for the utmost protection of the government's gravest secrets. It is unheard of for SAP-level data to reside in a non-secure, vulnerable venue—yet that is where Clinton caused four SAPs to reside.
Clinton's allies in the State Department have perpetrated the myth that the 2,000 emails were recently upgraded to reflect their secret contents. That is untrue. The emails possess secret status by virtue of their contents, not because of any markings on them. Clinton had a legal obligation to recognize state secrets when she saw them, no matter their markings or non-markings. On her first day on the job, she swore under oath that she recognized and understood that legal obligation and she promised to comply with it. She did not comply.
This past weekend, the newly revealed emails showed that Clinton emailed about the location of drone strikes. By their very nature, such emails contain state secrets. They contained state secrets when she received them; they contained them when she sent them; and they contain state secrets today.
Also this past weekend, Gen. Michael Hayden, formerly director of the CIA and of the National Security Agency (NSA), stated on CNN that it is a near certainty that the Russian government and others had access to Clinton's non-secure server and all it contained.
Lawyers familiar with the terminology of state secrets will refrain from using the word "classified" to describe the emails that contained state secrets, even though Clinton repeatedly does that. The word "classified" is not a legal term; rather, it is derived from the verb "to classify," and it means that the classification process has been completed.
Since nothing is marked "classified"—the legal markings are "confidential," "secret" and "top secret"—Clinton has been materially misleading the public and the FBI when she claims that she never sent or received anything "marked classified."
By saying that, she wants us to believe that in more than 2,000 instances, she failed to ascertain the presence of state secrets in emails she received or sent. No voter but the most hardened supporter, no federal prosecutor, no FBI agent, and no juror will believe that.
The FBI investigation process is coming to its logical conclusion, and the judge who ordered the State Department to release all of Clinton's emails also has ordered that her top State Department aides submit to oral depositions—examinations under oath before trial—in the Freedom of Information Act litigation brought by Judicial Watch against the State Department.
He directed the Judicial Watch lawyers to ascertain whether there was a conspiracy in the secretary of state's office to violate federal law. If those lawyers find evidence of such a conspiracy, they may then seek the oral examination of Clinton herself.
This search for a conspiracy will take Clinton down the road to perdition—to the end of her hopes. Along that road are instructions to a subordinate to divert all her government emails through her private server. On the side of that road are emails instructing her aides to remove "secret" markings from documents and resend the documents to her via a non-secure fax machine.
On that road are emails revealing the names of secret undercover intelligence assets, the locations of North Korean nuclear facilities, the transcripts of telephone conversations among foreign intelligence agents, and the travel plans of then-U.S. Ambassador to Libya Christopher Stevens in the days before he was murdered.
Democrats who indulge in Clinton's false hopes will do so at their peril. Don't they want to know of her potential status as a criminal defendant before they complete their nominating process? Or do they, like her, think that they can just hope that all this will go away?
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]]>"There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all." — Justice Antonin Scalia (1936-2016)
After the San Bernardino massacre on Dec. 2, 2015, the FBI lawfully acquired the cellphone of one of the killers and persuaded a federal judge to authorize its agents to access the contents of the phone. Some of what it found revealed that the killer used the phone to communicate with victims and perhaps confederates and even innocents who unwittingly provided material assistance.
Then the FBI hit a wall. It appears that the killer took advantage of the phone's encryption features to protect some of his data from prying eyes unarmed with his password.
The cellphone was an iPhone, designed and manufactured by Apple, the wealthiest publicly traded corporation on the planet. Apple built the iPhone so that its users can store sensitive, private, personal data on the phone without fear of being hacked by friend or foe.
After the FBI determined it could not replicate the killer's password without jeopardizing the phone's content, it approached Apple, and representatives of each negotiated for weeks trying to find a way for Apple to help the FBI without compromising the security of the Internet itself. They failed.
Apple has argued that the government has no legal right to compel it to assist in a government investigation, or to compel it to alter or destroy its business model of guaranteeing the safety and privacy of its customers' data. Apple knows that any "key" it creates for the FBI, once used on the Internet, is itself vulnerable to hacking, thereby jeopardizing all Apple products and negating the privacy of tens of millions, and even exposing the government to foreign hackers.
The Department of Justice (DOJ) has argued that Apple has a legal duty to help solve the mystery of who knew about the San Bernardino attacks so that the guilty can be prosecuted and the rest of us protected from future harm. Its lawyers asserted that the government would keep secure whatever key Apple created.
After the DOJ/Apple talks broke down, the DOJ made a secret application on Feb. 16, 2016, two and a half months after the massacre, to a federal judge for a search warrant for this key to access the killer's iPhone.
The warrant was improperly granted because Apple was not given notice of the DOJ application. So, the judge who issued the order denied Apple due process—its day in court. That alone is sufficient to invalidate the order. Were Apple a defendant in a criminal case or were Apple to possess hard evidence that could exonerate or help to convict, the secret application would have been justified.
But that is not the case here.
Instead, the DOJ has obtained the most unique search warrant I have ever seen in 40 years of examining them. Here, the DOJ has persuaded a judge to issue a search warrant for A THING THAT DOES NOT EXIST, by forcing Apple to create a key that the FBI is incapable of creating.
There is no authority for the government to compel a nonparty to its case to do its work, against the nonparty's will, and against profound constitutional values. Essentially, the DOJ wants Apple to hack into its own computer product, thereby telling anyone who can access the key how to do the same.
If the courts conscripted Apple to work for the government and thereby destroy or diminish its own product, the decision would constitute a form of slavery, which is prohibited by our values and by the Thirteenth Amendment.
Yet, somewhere, the government has the data it seeks but will not admit to it, lest a myth it has foisted upon us all be burst. Since at least 2009, the government's domestic spies have captured the metadata—the time, place, telephone numbers and duration of all telephone calls—as well as the content of telephone calls made in America under a perverse interpretation of the FISA statute and the Patriot Act, which a federal appeals court has since invalidated.
The DOJ knows where this data on this killer's cellphone can be found, but if it subpoenas the National Security Agency (NSA), and the NSA complies with that subpoena, and all this becomes public, that will put the lie to the government's incredible denials that it spies upon all of us all the time. Surely it was spying on the San Bernardino killers.
There is more at stake here than the privacy of Apple's millions of customers and the security of power grids and all that the Internet serves. Personal liberty in a free society is at stake. A government that stays within the confines of the Constitution is at stake.
The late great Justice Antonin Scalia recognized that liberty and safety are not in equipoise when he wrote that there is nothing novel about liberty trumping safety under the Constitution. The primacy of liberty and a government subject to the rule of law is the core constitutional principle that, while honored, will keep tyranny at bay. And when dishonored, will let tyranny thrive.
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]]>When the sad news came of the sudden death this past weekend of U.S. Supreme Court Justice Antonin Scalia, I wept for my friend.
We had developed a happy friendship during the past 15 years, one which I had selfishly hoped would endure. He permitted his friends to see all of him. We knew him to be in private just as he appeared in public—happy, loud, brash, warm, engaging, challenging, witty, brilliant, courageous, Catholic, traditionalist. He also let us know that he understood the significant role history gave him. Knowing him personally and spending private time with him was one of the great gifts of my adult life. In my heart, there is a great sense of loss.
Regrettably, in the nation there is a sense of loss for the Constitution as well.
Justice Scalia was the most aggressive and consistent defender on the Supreme Court of the primacy of the text of the Constitution in the post-World War II era. He was the modern-day progenitor of the idea—and eventually the jurisprudence—of interpreting the Constitution faithful to the plain meaning of its words. He was utterly and unambiguously faithful to this concept. This theory of constitutional interpretation has two names—textualism and originalism.
Justice Scalia argued that the Constitution means what it says; its says it is the supreme law of the land; and all American judges have taken an solemn oath to be subject to what it says. It is superior to the jurists who interpret it. It is what is says, not as they might wish it says. Thus, all judges are bound by the text. Hence the word "textualism."
So "no law" means no law. "Due process" guarantees fair process, not substance. A constitutional guarantee is a real guarantee. The exercise of rights articulated in the Constitution cannot be subject to popularity contests.
If the text of the Constitution is ambiguous, it then becomes the duty of the jurist to ascertain the original public meaning of the words that form the ambiguity. Hence the word "originalism." Ascertaining original public meaning often requires the skills of a historian; yet, thanks to James Madison, the historical record is ample.
The rejection of this line of thinking permits jurists to interpret the Constitution in novel and creative or even destructive ways, according to their own ideologies. It permits them to adapt a meaning in the text that they wish had been there to fortify contemporary societal attitudes. Justice Scalia argued that that is not the job of jurists.
Federal judges have life tenure because they represent the anti-democratic part of the federal government. Their job is to preserve constitutional norms and structures and guarantees from interference by the popular branches of the federal government or the States, even when those branches or the States command popular support.
The job of the jurist, he argued, is not to adapt the text of the Constitution to public trends or cultural changes. That is the job of the Congress and the States through legislation.
His textualism/originalism arguments provoked a firestorm of opposition on the Court and in the legal academy. The opposition reacted and coalesced around a concept called the "living Constitution." Its tenets are that modern-day jurists can adapt the Constitution to modern-day societal preferences and governmental needs.
Justice Scalia argued that that itself violates the judicial oath, which is to uphold the Constitution as it was written, not as some jurists may wish it to be. Only three quarters of the States, he maintained, can change the Constitution—by amendment—and they have done so only 27 times in the past 225 years.
Some justices throughout history have been compromisers and conciliators. Not Justice Scalia. He was a lion of textual orthodoxy. He was a rock of original meaning. Law students jokingly called him the pope of originalism, a phrase he loved.
This steadfast attitude about the proper judicial role on the Court led him to author staunch defenses of the right to life even in the womb, free speech even when hateful, private property even when it is in the government's way, the right to confront one's accusers at trial even when unpleasant, the right to keep and bear arms in the home even if locally prohibited, and the right to privacy in "persons, houses, papers, and effects."
He famously voted to limit privacy to those four areas because of his fidelity to the text of the Constitution, which articulates persons, houses, papers and effects as the areas immune from government intrusion without a proper search warrant. He believed that if those areas are to be expanded, it is for the States to expand them by amendment, not for the Court to do so based on a wish list.
In the early days of our friendship, I was a bit awed by him. I once asked him if he felt he belonged to the Court. His reply was short and blunt. He told me he belonged to the Roman Catholic Church, he belonged to his family, and he belonged to the Constitution. The Court, he said, was just one creature intended to preserve, protect, and defend the Constitution. The Constitution is the Court's creator. No creature can be greater than its creator. He liked the Court. He loved the Constitution.
Now he is with the Creator of us all. Now he belongs to the ages.
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]]>What if all the remaining presidential candidates really want the same things? What if they all offer essentially the same ideas couched in different words? What if these primary races have become beauty pageants largely based on personality and advertising?
What if our system of governance is so deep into the fabric of big government in the second decade of the 21st century that all the presidential candidates really believe that most voters actually want the government to care for them?
What if all major candidates in both major political parties promise a federal government that can right any wrong, regulate any behavior, tax any event, solve any problem, and borrow unlimited amounts of money?
What if the federal government is broke? What if it is politically committed to spending more money than it collects in revenue? What if all the candidates believe in borrowing money today and again borrowing money next year to pay off today's debts? What if rolling over federal debt never pays off or even pays down the principal?
What if none of the candidates cares about increasing the inflationary pressures and tax burdens on generations of Americans as yet unborn? What if they all want to spend hundreds of billions of dollars a year more than is collected in revenue? What if they all refuse to address the issue of how to pay back responsibly all the borrowed money from the past 100 years?
What if today we are the victims of this borrowing and spending mentality begun by President Woodrow Wilson and followed by nearly all of his successors up to President Obama? What if all the candidates in the presidential primaries plan to continue this self-destructive process?
What if the modern federal government has never paid back a loan in full without using borrowed money, and none of the candidates running for president cares about that, and all have indicated that they would continue to do the same? What if, as of today, nearly 20 cents of every dollar collected in revenue must legally be paid to lenders to the federal government as interest on their loans? What if American military leaders have argued that the government's debt is a greater threat to national security than is ISIS?
What if, when these candidates talk about curing cancer or eradicating the heroin epidemic or providing clean water, they are doing so to tug at your heartstrings? What if they are all mimicking President Obama's politically successful demonstrations of empathy? What if these issues—genuine problems in contemporary America—are not federal problems because they do not spring from areas of governance delegated by the Constitution to the federal government? What if health, safety, welfare, and morality are the core of the states' responsibilities and not the federal government's?
What if all these candidates don't care about the Constitution and its guarantees of personal freedom, its checks and balances, and its division of governmental powers, even though, before entering office, they will be required to take a solemn oath to preserve, protect and defend the Constitution?
What if the candidates all want to rearrange borders of countries in the Middle East using the American military? What if they all think they can use the blood of young Americans to force democratic governmental structures upon foreign peoples whose cultures have rejected repeatedly the concepts of majority rule, due process and natural rights over the course of a thousand years of religious civil wars? What if the candidates all fail to see that the more innocents we kill abroad, the more we use force to tell others how to live, the more harm comes to us—to our people, to our culture and to our freedoms?
What if all the candidates for president favor the government using torture, detaining persons without trial, and continuous surveillance of all the telephone calls, emails, and text messages of all persons in America—even though these behaviors are profoundly unconstitutional, morally un-American, uniquely destructive of personal liberty in a free society, and fail to enhance public safety?
What if all these candidates—in differing degrees—reject the concept of limited government? What if they all want to bribe the rich with bailouts and the middle class with tax breaks and the poor with welfare? What if these candidates and their supporters and their attitudes about the role of government in our lives have reduced government at this sad time in our history to a game whereby everyone tries to live at someone else's expense?
What if none of the candidates recognizes that government is an artificial creation based on force and ought to be exercised minimally? What if none of them understands that prosperity comes from the free choices of investors, workers, and consumers, and not from the decisions of the federal government's central planners?
What if none of these current candidates acknowledges that individuals are sovereign, our rights are inalienable, our property belongs to us, our souls are immortal, and that the government works for us—not the other way around?
What ever happened to the right to be left alone? Where is a candidate who will defend it? What are lovers of liberty to do?
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]]>This has not been a good week for Hillary Clinton. She prevailed over Sen. Bernie Sanders in the Iowa Democratic presidential caucuses by less than four-tenths of one percent of all votes cast, after having led him in polls in Iowa at one time by 40 percentage points. In her statement to supporters, standing in front of her gaunt and listless looking husband, she was not able to mouth the word "victory" or any of its standard variants. She could barely hide her contempt for the Iowa Democrats who deserted her.
Sanders isn't even a Democrat. According to official Senate records, he is an "Independent Socialist" who votes to organize the Senate with the Democrats, and sits on the Senate floor with them. Clinton, of course, is the heiress to the mightiest Democratic political apparatus in the land. Hence the question: What do the Iowa Democrats know that caused thousands of them to flee from her?
They know she is a crook.
On the Friday before Monday's caucuses, the State Department, which Clinton headed in President Obama's first term, revealed that it discovered 22 top-secret emails on the private computer server to which Clinton diverted all her governmental email traffic. This acknowledgement marks a radical departure from previous State Department pronouncements and is a direct repudiation of Clinton's repeated assertions.
She has repeatedly asserted that she neither sent nor received anything "marked classified" using her private email server. The State Department, until last Friday, has backed that up by claiming that while the substance of at least 1,300 of her emails was confidential, secret or top secret, they were not "marked" as such when she dealt with them.
These are word games. First, under the law, nothing is "marked classified." The markings are "confidential" or "secret" or "top secret," and Clinton knows this. Second, under the law, it is not the markings on the email headers that make the contents state secrets; it is the vulnerability of the contents of the emails to impair the government's national security mission that rationally characterizes them as secrets. Clinton knows this because she signed an oath on Jan. 22, 2009, recognizing that state secrets retain their secrecy status whether "marked or unmarked" by any of the secrecy designations. She knows as well that, under the law, the secretary of state is charged with knowing state secrets when she comes upon them.
Yet, in order to further Clinton's deceptive narrative, the State Department has consistently claimed that it retroactively marked at least 1,300 emails as state secrets. It did this until last Friday.
Last Friday, the State Department revealed that 22 emails it found on Clinton's private server were in fact top secret, and were in fact marked top secret, and were in fact sent to or received from President Obama. This is a revelation that substantially undermines Clinton's political arguments and is catastrophic to her legal position.
Politically, Clinton has lost the final argument in her public arsenal—that she did not recognize top-secret data unless it was marked as top secret. She has also lost the ability to claim, as she has repeatedly, that she neither sent nor received anything marked classified, as meaningless as that phrase is.
Legally, the ground under Clinton continues to crumble. The more she denies, the more she admits. How can that be? That is so because her denials are essentially an admission of ignorance, forgetfulness, or negligence, and, under the law, these are not defenses to the failure to safeguard state secrets entrusted to the secretary of state. They are, instead, recognition of that failure.
Late Monday afternoon, before the Iowa caucuses convened and after Clinton's political folks had lobbied their former colleagues at the State Department to re-characterize what they found and revealed late last week, the State Department reversed itself and claimed that the 22 emails were not "marked" top secret. It was too little and too late. The cat was out of the bag and Iowa Democrats knew it. Few really believed that the State Department would state publicly that the 22 emails were top secret and then state publicly that they were not, without a political motivation and irrespective of the truth. All this is infuriating to the FBI, which perceives these word games as mocking its fidelity to the rule of law.
Sanders' presence in the Democratic primaries will continue to give Democrats who mistrust Clinton a safe political haven. But he is not Clinton's real worry. Her real worry is an FBI committed to the rule of law and determined to fortify national security by gathering the evidence of her mishandling state secrets.
Let's be as blunt about this as the FBI will be: Causing state secrets to reside in a nonsecure, nongovernmental venue, whether done intentionally or negligently, constitutes the crime of espionage.
And there is more. When asked about the consequences of Clinton's brazen exposure of state secrets to anyone who knows how to hack into a nonsecure computer, an intelligence operative winced as if in pain when he remarked that the nation's then chief diplomat surely compromised the "sources, methods, and lives" of her colleagues. Even Democrats who see Clinton as a symbol of their long-time wish for a progressive female in the Oval Office are beginning to recognize that anyone who has jeopardized American lives for political gain is unworthy of their votes, unworthy of their trust, and unworthy of public office.
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]]>Hillary Clinton's nightmare is not the sudden resurgence of Bernie Sanders. It is the fidelity to the rule of law of the FBI.
The recent revelations of the receipt by Clinton of a Special Access Program email, as well as cut and pasted summaries of state secrets on her server and on her BlackBerry, nearly guarantee that the FBI will recommend that the Department of Justice convene a grand jury and seek her indictment for espionage. Here is the backstory.
It seems that every week, more information comes to light about Clinton's grave legal woes. Her worries are in two broad categories: One is her well-documented failure to safeguard state secrets and the other is her probable use of her position as secretary of state to advance financially her husband's charitable foundation. The FBI is currently and aggressively investigating both. What I will describe below is in the state secrets category. It is apparently not new to the FBI, but it is new to the public.
Among the data that the FBI either found on the Clinton server or acquired from the State Department via its responses to Freedom of Information Act requests is a top-secret email that has been denominated Special Access Program (SAP). Top secret is the highest category of state secrets (the other categories are confidential and secret), and of the sub-parts of top secret, SAP is the most sensitive.
SAP is clothed in such secrecy that it cannot be received or opened accidentally. Clinton—who ensured all of her governmental emails came to her through her husband's server, a nonsecure nongovernmental venue—could only have received or viewed it from that server after inputting certain codes. Those codes change at unscheduled times, such that she would need to inquire of them before inputting them.
The presence of the SAP-denominated email on her husband's server, whether opened or not, shows a criminal indifference to her lawful obligation to maintain safely all state secrets entrusted to her care. Yet, Clinton has suggested that she is hopelessly digitally inept and may not have known what she was doing. This constitutes an attempted plausible deniability to the charge of failing to safeguard state secrets.
But in this sensitive area of the law, plausible deniability is not an available defense; no judge would permit the assertion of it in legal filings or in a courtroom, and no lawyer would permit a client to make the assertion. This is so for two reasons. First, failure to safeguard state secrets is a crime for which the government need not prove intent. The failure can be done negligently. Thus, plausible deniability is actually an admission of negligence and, hence in this case, an admission of guilt, not a denial.
Second, Clinton signed an oath under penalty of perjury on Jan. 22, 2009, her first full day as secretary of state. In that oath, she acknowledged that she had received a full FBI briefing on the lawfully required care and keeping of state secrets. Her briefing and her oath specified that the obligation to safeguard state secrets is absolute—it cannot be avoided or evaded by forgetfulness or any other form of negligence, and that negligence can bring prosecution.
What type of data is typically protected by the SAP denomination? The most sensitive under the sun—such as the names of moles (spies working for more than one government) and their American handlers, the existence of black ops (illegal programs that the U.S. government carries out, of which it will deny knowledge if exposed), codes needed to access state secrets, and ongoing intelligence gathering projects.
The crime here occurs when SAPs are exposed by residing in a nonsecure venue; it does not matter for prosecution purposes whether they fell into the wrong hands.
Clinton's persistent mocking of the seriousness of all this is the moral equivalent of taunting alligators before crossing a stream. SAPs are so sensitive that most of the FBI agents who are investigating Clinton lack the security clearances needed to view the SAP found among her emails. Most FBI agents have never seen a SAP.
Shortly after the presence of the SAP-denominated email was made known, the State Department released another email Clinton failed to erase wherein she instructed her subordinates to take state secrets from a secure venue, to cut and paste and summarize them, and send them to her on her nonsecure venue. Such an endeavor, if carried out, is a felony—masking and then not safeguarding state secrets. Such a command to subordinates can only come from a criminal mind.
Equally as telling is a little-known 2013 speech that recently surfaced given by one of Clinton's former subordinates. The aide revealed that Clinton and her staff regularly engaged in digital conversations about state secrets on their BlackBerries. This is not criminal if the BlackBerries were government-issued and secured. Clinton's was neither. It was purchased at her instructions off the shelf by one of her staff.
Can anyone doubt that Clinton has failed to safeguard state secrets? If her name were Hillary Rodham instead of Hillary Rodham Clinton, she'd have been indicted months ago.
What remains of the rule of law in America? The FBI will soon tell us.
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]]>The federal criminal investigation of former Secretary of State Hillary Clinton's failure to secure state secrets was ratcheted up earlier this week, and at the same time, the existence of a parallel criminal investigation of another aspect of her behavior was made known. This is the second publicly revealed expansion of the FBI's investigations in two months.
I have argued for two months that Clinton's legal woes are either grave or worse than grave. That argument has been based on the hard, now public evidence of her failure to safeguard national security secrets and the known manner in which the Department of Justice addresses these failures.
The failure to safeguard state secrets is an area of the law in which the federal government has been aggressive to the point of being merciless. State secrets are the product of members of the intelligence community's risking their lives to obtain information.
Before she was entrusted with any state secrets—indeed, on her first full day as secretary of state—Clinton received instruction from FBI agents on how to safeguard them; and she signed an oath swearing to comply with the laws commanding the safekeeping of these secrets. She was warned that the failure to safeguard secrets—known as espionage—would most likely result in aggressive prosecution.
In the cases of others, those threats have been carried out. The Obama Department of Justice prosecuted a young sailor for espionage for sending a selfie to his girlfriend, because in the background of the photo was a view of a sonar screen on a submarine. It prosecuted a heroic Marine for espionage for warning his superiors of the presence of an al-Qaida operative in police garb inside an American encampment in Afghanistan, because he used a Gmail account to send the warning.
It also prosecuted Gen. David Petraeus for espionage for keeping secret and top-secret documents in an unlocked drawer in his desk inside his guarded home. It alleged that he shared those secrets with a friend who also had a security clearance, but it dropped those charges.
The obligation of those to whom state secrets have been entrusted to safeguard them is a rare area in which federal criminal prosecutions can be based on the defendant's negligence. Stated differently, to prosecute Clinton for espionage, the government need not prove that she intended to expose the secrets.
The evidence of Clinton's negligence is overwhelming. The FBI now has more than 1,300 protected emails that she received on her insecure server and sent to others—some to their insecure servers. These emails contained confidential, secret, or top-secret information, the negligent exposure of which is a criminal act.
One of the top-secret emails she received and forwarded contained a photo taken from an American satellite of the North Korean nuclear facility that detonated a device just last week. Because Clinton failed to safeguard that email, she exposed to hackers and thus to the North Koreans the time, place, and manner of American surveillance of them. This type of data is in the highest category of protected secrets.
Last weekend, the State Department released two smoking guns—each an email from Clinton to a State Department subordinate. One instructed a subordinate who was having difficulty getting a document to Clinton that she had not seen by using a secure State Department fax machine to use an insecure fax machine. The other instructed another subordinate to remove the "confidential" or "secret" designation from a document Clinton had not seen before sending it to her. These two emails show a pattern of behavior utterly heedless of the profound responsibilities of the secretary of state, repugnant to her sworn agreement to safeguard state secrets, and criminal at their essence.
Also this past weekend, my Fox News colleagues Katherine Herridge and Pamela Browne learned from government sources that the FBI is investigating whether Clinton made any decisions as secretary of state to benefit her family foundation or her husband's speaking engagements. If so, this would be profound public corruption.
This investigation was probably provoked by several teams of independent researchers—some of whom are financial experts and have published their work—who have been investigating the Clinton Foundation for a few years. They have amassed a treasure-trove of documents demonstrating fraud and irregularities in fundraising and expenditures, and they have shown a pattern of favorable State Department treatment of foreign entities coinciding with donations by those entities to the Clinton Foundation and their engaging former President Bill Clinton to give speeches.
There are now more than 100 FBI agents investigating Hillary Clinton. Her denial that she is at the core of their work is political claptrap with no connection to reality. It is inconceivable that the FBI would send such vast resources in the present dangerous era on a wild-goose chase.
It is the consensus of many of us who monitor government behavior that the FBI will recommend indictment. That recommendation will go to Attorney General Loretta Lynch, who, given Clinton's former status in the government and current status in the Democratic Party, will no doubt consult the White House.
If a federal grand jury were to indict Clinton for espionage or corruption, that would be fatal to her political career.
If the FBI recommends indictment and the attorney general declines to do so, expect Saturday Night Massacre-like leaks of draft indictments, whistleblower revelations, and litigation, and FBI resignations, led by the fiercely independent and intellectually honest FBI Director James Comey himself.
That would be fatal to Clinton's political career, as well.
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"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." —Second Amendment to the U.S. Constitution
In 2008, the Supreme Court laid to rest the once-simmering dispute over the meaning of the Second Amendment. In an opinion written by Justice Antonin Scalia, the court articulated the modern existence of the ancient right to keep and bear arms as a pre-political right.
A pre-political right is one that pre-exists the political order that was created to protect it. Thus, the court held, the origins of this right are the ancient and persistent traditions of free peoples and their natural inclinations to self-defense.
The court also characterized the right as fundamental. That puts it in the highest category of rights protected by the Bill of Rights. Though the origins of this right are from an era well before guns existed, the textual language in the amendment—"Arms"—makes clear, the court ruled, the intention of the Framers that its continuing purpose should be to recognize the right of people to keep and use the same level of technologically available arms that might be used against them.
That, in a nutshell, is the history, theory, and purpose of the amendment as the modern Supreme Court has found them to be. But as we have seen, the constitutional guarantees that were written to keep the government from interfering with our rights are only as viable as is the fidelity to the Constitution of those in whose hands we have reposed it for safekeeping. In our system, principal among those are the hands of the president; and sadly, today we have a president seriously lacking in this fidelity. And that lack is salient when it comes to the Second Amendment.
Earlier this week, President Barack Obama announced that he will sign executive orders that expand the size and scope of federal monitoring of the acquisition and use of guns—traditionally a matter left to the states—and he will interpret the laws in novel ways, establish rules and impose obligations that Congress rejected, and prosecute those who defy his new system.
The president has very little room to issue executive orders on guns because the congressional legislation in this area is so extensive, detailed, and clear. In addition to ordering your doctor to report to the Department of Homeland Security (DHS) any mention you may make to the doctor of guns in your home, the president has decreed on his own and against the articulated will of Congress the obligation of all people who transfer any gun to any other person to obtain a federal gun dealer license. This is among the most cumbersome and burdensome licenses to obtain.
He has also decreed that any licensee who fails to perform a background check on the person to whom the licensee has transferred a gun shall be guilty of a felony. Give a BB gun to your nephew on his 16th birthday without a federal license and you can go to prison.
Can the president do that? In a word: No.
Under our system of government, only Congress can write federal laws and establish crimes. The president is on particularly thin constitutional ice here because his allies in Congress have proposed this very procedure as an amendment to existing law, and Congress has expressly rejected those proposals.
The president is without authority to negate the congressional will, and any attempt to do so will be invalidated by the courts. As well, by defining what an occasional seller is, beyond the congressional definition or the plain meaning of the words, the president is essentially interpreting the law, a job reserved for the courts.
By requiring physicians to report conversations with their patients about guns to the DHS, the president will be encouraging them to invade the physician-patient privilege; and I suspect that most doctors will ignore him.
Under the Constitution, fundamental liberties (speech, a free press, worship, self-defense, travel, and privacy, to name a few) are accorded the highest protection from governmental intrusion. One can only lose a fundamental right by intentionally giving it up or via due process (a jury trial resulting in a conviction for criminal behavior). The president—whose support for the right to keep and bear arms is limited to the military, the police and his own heavily armed body guards—is happy to begin a slippery slope down into the dark hole of totalitarianism, whereby he or a future president can negate liberties if he hates or fears the exercising of them.
We still have a Constitution in America. Under the Constitution, Congress writes the laws, the president enforces them, and the courts interpret them. The president can no more write his own laws or impose his own interpretations upon pre-existing laws than Congress or the courts can command the military.
As troubling as this turn of events is, it is not surprising. The president is a progressive, and the ideology of progressivism is anathema to self-help or individualism. He really believes that the government can care for us better than we can care for ourselves.
Yet he ignores recent history. Any attempt to make it more difficult for people to keep and bear arms not only violates the fundamental liberty of those people but also jeopardizes the safety of us all. Add to this the progressive tendency to use government to establish no-gun zones and you have the recipe for disaster we have recently witnessed. All of the recent mass killings in America—from Columbine to San Bernardino—have occurred in no-gun zones, where crazies and terror-minded murderers can shoot with abandon.
That is, until someone arrives with a gun and shoots back. Then the killer flees or is injured or dies— and the killing stops.
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[Ed. note: Judge Napolitano's choices are marked with italics.]
1) The Republican nominee for president in 2016 will be…
a. Donald Trump by unanimous acclamation of the Republican National Convention.
b. Ted Cruz by unanimous acclamation of the convention.
c. Mitt Romney after a contested, bitter, brokered convention.
d. none of the above.
2) The Democratic nominee for president in 2016 will be…
a. Hillary Clinton.
b. Bernie Sanders.
c. Al Gore after a contested, bitter, brokered Democratic National Convention.
d. not Hillary Clinton, because she will be indicted by a federal grand jury for various crimes.
3) The voters will elect in a landslide…
a. whoever promises to give them the biggest piece of the federal pie.
b. whoever scares them the most.
c. whoever comes across as most faithful to the Constitution.
d. a sleeper candidate not yet on the scene.
4) The 2016 Republican platform will promise…
a. to eradicate the Islamic State group by using ground troops and fighting an all-out war.
b. to replace Obamacare with a lighter, easier version of it.
c. to make abortion illegal, except for in cases of rape and incest.
d. to bring the troops home and let the Russians fight the Islamic State.
5) The 2016 Democratic platform will promise…
a. a 2016 version of "a chicken in every pot and a car in every garage."
b. free health care for those who want it.
c. criminalizing hate speech.
d. all of the above.
6) The Super Bowl will be won by…
a. the Carolina Panthers.
b. the New England Patriots, but only by cheating.
c. the New York Jets after the greatest comeback in NFL history.
d. none of the above.
7) The World Series will be won by…
a. the New York Mets.
b. the San Francisco Giants.
c. the Boston Red Sox, but only after they acquire A-Rod from the Yankees.
d. none of the above.
8) In 2016, climate change…
a. will be embraced by the Republican Party in a dramatic turnabout.
b. will be defined as an article of faith by Pope Francis.
c. will be exposed as a fraud.
d. will leave the public marketplace of ideas.
9) The Supreme Court…
a. will invalidate all spying without a warrant based on individualized suspicion.
b. will invalidate race as a factor to be taken into account by government-owned schools.
c. will continue to expand First Amendment rights.
d. will finally invalidate Obamacare.
10) Congress will…
a. continue to finance the federal government by borrowing money.
b. will let President Barack Obama declare war.
c. will impeach President Obama for refusing to enforce federal law.
d. do none of the above.
11) Pope Francis will…
a. permit divorced and remarried Roman Catholics to receive the Blessed Sacrament.
b. forgive everyone's sins during the 2016 Year of Mercy.
c. remove the requirement for a miracle as a condition for declaring someone to be a saint.
d. resign and become a simple parish priest in Buenos Aires, Argentina.
12) The Hollywood industry will…
a. offer movies directly to consumers.
b. suffer its most crippling actor strike in its history.
c. continue its leftward view of human existence.
d. leave California because of the drought.
13) The highest taxes in the United States will be in…
a. New Jersey, where they are now.
b. New York City because Mayor Bill de Blasio will tax the rich at 50 percent of income.
c. in California.
d. none of the above.
14) One year from today…
a. Hillary Clinton will be in prison.
b. Donald Trump will be selling pencils.
c. Chris Christie will have been in the Olympics.
d. the president-elect will be someone who did not participate in any 2015 presidential debates.
15) One year from today…
a. the government will be able to take any property from you that it wants.
b. the Environmental Protection Agency will be able to regulate your use of a lawn mower and a rake.
c. the National Security Agency will still be able to capture your keystrokes on your computer in real time.
d. none of the above will be true.
16) In 2016, President Obama will announce…
a. that he will become the president of the University of Chicago.
b. that he has lost his license to practice law.
c. that he and Michelle Obama will soon divorce.
d. that he was not born in the United States.
17) In 2016…
a. Fox News Channel will surpass the broadcast networks in audience share.
b. Bill O'Reilly will run for public office and lose.
c. A-Rod will get sexual reassignment surgery.
d. Madonna will enter a convent.
18) By the end of 2016…
a. the Islamic State will be dead and gone.
b. the Islamic State will have signed a peace treaty with the West.
c. Vladimir Putin will be out of office.
d. none of the above will have happened.
19) One year from today…
a. gasoline will cost less than $1 a gallon.
b. a Big Mac will cost $10.
c. half the newspapers presently in the country will be out of business.
d. Apple will be producing an iPhone that it claims can contact dead relatives.
20) Ultimately…
a. it is better to have loved and lost than never to have loved at all.
b. that government is best which governs least.
c. taxation is theft.
d. all of the above are true.
My choices: 1d, 2d, 3b, 4a, 5b, 6c, 7d, 8b, 9a, 10a, 11a, 12a, 13a, 14a, 15d, 16c, 17a, 18d, 19c, 20d.
COPYRIGHT 2015 ANDREW P. NAPOLITANO || DISTRIBUTED BY CREATORS.COM
The post Political Predictions for 2016 appeared first on Reason.com.
]]>As if to promise a Christmas present, Congress has just finished approving the finances of the federal government for the next few months. Santa Claus would have done a better job. During early 2016, Congress will pay the government's bills by borrowing money from individual and institutional lenders. Those folks will lend the feds all the money the feds need because the law requires the feds to pay them back.
The "pay them back" ideology is a very curious one. It is true that the full faith and credit of the federal government guarantees the payment of the government's debts. Without that lawfully binding guarantee, who would lend money to an institution that carries a debt of $18.8 trillion? So the investors who have lent money to the feds know that their debts will be repaid in a timely manner.
Because the federal government spends $1.5 trillion more annually than it collects in taxes and other revenue and because its payments of interest alone on the money it has borrowed will soon be about $1 trillion a year, it can only repay its debts by borrowing more money. Since 1911, the federal government has not repaid a debt from tax revenue. It has always borrowed more money to pay its lenders. This is known to economists as rolling over the debt.
President Woodrow Wilson—who gave us a racially segregated military and federal civilian workforce, brought us into the horrific and useless World War I, arrested Americans for singing German beer hall songs in public, campaigned for the federal income tax by promising it would never exceed 3 percent of income, helped to create the cash-printing Federal Reserve, laid the groundwork for Prohibition, and kept Jim Crow going—borrowed $30 billion to pay for World War I. That money was borrowed from investors and from the Federal Reserve, which in those days literally printed the cash that it lent.
The $30 billion that Wilson borrowed was repaid by the feds with borrowed dollars. And the folks who lent the feds those dollars were in turn repaid with borrowed dollars. That inflationary cycle has been repeated countless times since all this borrowing from Peter to pay Paul became the financing method of choice for the feds.
As a result of this, the federal government still owes the $30 billion that Wilson borrowed, but it owes it— obviously—to different lenders from those who originally financed the Great War. It has paid more than $15 billion in interest payments on that $30 billion.
Who could run a household or a business the way the feds have run the government in the past 100 years?
As we approach a presidential election year, the federal financing-by-borrowing scheme is seen as a standard operating procedure by all the Democratic candidates and by all the Republicans, as well, except for Sen. Rand Paul. He and he alone among the major candidates would have the feds live within their means and stop the vicious circle that Wilson began.
He understands that government has limits. Those limits are written down in the Constitution. He recognizes, as his competitors do not, that the government simply cannot morally or constitutionally right any wrong, regulate any behavior, borrow any amount, or tax any event as long as it can politically get away with it. When it does, we end up with war and debt.
Whenever you hear a presidential candidate proclaiming that the first job of the president is to keep America safe, challenge that absurdity. Invite that candidate to read the Constitution, which lays out the jobs of the president—the principal of which is to keep us free and safe. If a president keeps us safe but unfree, he is simply not doing his job. Only Sen. Paul has made that argument.
The world today is a sad place, and those who love freedom sometimes feel we are shoveling against the tide. But for just a moment, at this time of year, we should pause and remember an event that occurred about 2,000 years ago in the Middle East.
The world then was a far worse place, yet a light seared through the darkness. A baby was born in a cave. The Word was made flesh and dwelt among us. The baby came into the world so that we might have life and live it abundantly. The baby came into the world so that we would be set free from our own sins, free from the temptations of the world, and free from the governments that seek to control us.
The baby was the Son of God and the Prince of Peace and the savior of the world. This week we celebrate His birthday.
Merry Christmas.
COPYRIGHT 2015 ANDREW P. NAPOLITANO || DISTRIBUTED BY CREATORS.COM
The post Feds Still Owe the $30 Billion Woodrow Wilson Borrowed for WWI appeared first on Reason.com.
]]>While the country has been fixated on Donald Trump's tormenting his Republican primary opponents and deeply concerned about the government's efforts to identify any confederates in the San Bernardino, California, killings, a team of federal prosecutors and FBI agents continues to examine Hillary Clinton's tenure as secretary of state in order to determine whether she committed any crimes and, if so, whether there is sufficient evidence to prove her guilt beyond a reasonable doubt.
What began as an innocent Freedom of Information Act (FOIA) request by Judicial Watch, a D.C.-based public advocacy group promoting transparency in the executive branch, has now become a full criminal investigation, with Clinton as the likely target.
The basic facts are well-known, but the revealed nuances are important, as well. When the State Department responded to the Judicial Watch FOIA request by telling Judicial Watch that it had no emails from Clinton, Judicial Watch filed a lawsuit. When the State Department made the same representation to the court—as incredible as it seemed at the time—the judge accepted that representation, and the case was dismissed.
Then The New York Times revealed that Clinton used a private email server instead of the government's server for all of her work-related and personal emails during her four years as secretary of state. After that, the Judicial Watch FOIA case was reinstated, and then the judge in the case demanded of State that it produce Clinton's emails.
When Judicial Watch expressed frustration to the judge about the pace at which it was getting emails, the judge ordered Clinton, "under penalty of perjury," to certify that she had surrendered all her governmental emails to the State Department.
Eventually, Clinton did certify to the court that she did surrender all of her governmental emails to the State Department. She did so by sending paper copies of selected emails, because she had wiped clean her server. She acknowledged that she decided which emails were personal and which were selected as governmental and returned the governmental ones to the State Department. She has denied steadfastly and consistently that she ever sent or received any materials marked "classified" while secretary of state using her private server.
All of her behavior has triggered the FBI investigation because she may have committed serious federal crimes. For example, it is a crime to steal federal property. What did she steal? By diverting to her own venue the digital metadata that accompany all emails—metadata that, when attached to the work-related emails of a government employee, belong to the government—she stole that data. The metadata do not appear on her paper copies—hence the argument that she stole and destroyed the government-owned metadata.
This is particularly troublesome for her present political ambitions because of a federal statute that disqualifies from public office all who have stolen federal property. (She is probably already barred from public office—though this was not prominently raised when she entered the U.S. Senate or the Department of State—because of the china, silverware, and furniture that she and her husband took from the White House in January 2001.)
Clinton may also have committed espionage by failing to secure the government secrets entrusted to her. She did that by diverting those secrets to an unprotected, nongovernmental venue—her own server—and again by emailing those secrets to other unprotected and nongovernmental venues. The reason she can deny sending or receiving anything marked "classified" is that protected government secrets are not marked "classified."
So her statement, though technically true, is highly misleading. The governmental designations of protected secrets are "confidential," "secret," and "top secret"—not "classified." State Department investigators have found 999 emails sent or received by Clinton in at least one of those three categories of protected secrets.
Back when Clinton became secretary of state, on her first day in office, she had an hour-long FBI briefing on the proper and lawfully required care of government secrets. She signed a statement, under penalty of perjury, acknowledging that she knew the law and that it is the content of emails, not any stamped markings, that makes them secret.
Earlier this week, my Fox News colleagues confirmed the certain presence of top-secret materials among the 999 emails. Intelligence from foreign sources or about foreign governments is always top-secret, whether designated as such or not. And she knows that.
As well, she may have committed perjury in the FOIA case. When the House Select Committee on Benghazi, in its investigation of her role in the deaths of the U.S. ambassador to Libya and three other Americans, gathered emails, it found emails she did not surrender to the State Department.
Last week, the State Department released emails that give the FBI more areas to investigate. These emails may show a pattern of official behavior by Clinton designed to benefit the financial interests of her family's foundation, her husband, and her son-in-law. Moreover, the FBI knows of a treasure-trove of documents that may demonstrate that the Clinton Foundation skirted the law and illegally raised and spent contributions.
Two months ago, a group of FBI agents sat around a conference table and reviewed the evidence gathered thus far. Each agent was given the opportunity to make or detract from the case for moving forward. At the end of the meeting, it was the consensus of the group to pursue a criminal investigation. And Clinton is the likely target.
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The post Top-Secret Material Among Hillary's 'Lost' Emails appeared first on Reason.com.
]]>If you were looking for a needle in a haystack, simple logic would tell you that the smaller the haystack the likelier you are to find the needle. Except for the government.
Since Edward Snowden revealed the federal government's unlawful and unconstitutional use of federal statutes to justify spying on all in America all the time, including the members of Congress who unwittingly wrote and passed the statutes, I have been arguing that the Fourth Amendment prohibits all domestic spying, except that which has been authorized by a search warrant issued by a judge. The same amendment also requires that warrants be issued only based on a serious level of individualized suspicion backed up by evidence—called probable cause—and the warrants must specifically identify the place and person to be spied upon.
Because these requirements are in the Constitution, which is the supreme law of the land, Congress and the president and the courts are bound by them. There is no emergency or public safety or wartime exception to them. These requirements cannot be changed by legislation; only a constitutional amendment, ratified by the legislatures of 37 states, can do so.
All of this is what lawyers and judges call black letter law—meaning it is well-understood, has not been seriously challenged and is nearly universally accepted. Except by the government.
The government—which thinks it can right any wrong, tax any event, regulate any behavior, and interfere with any right—also thinks it can keep us safe from the terrorists among us by cutting constitutional corners, which it has done many times since 9/11. Among the constitutional corners it has cut is unleashing its 60,000 domestic spies upon us with orders to disregard the constitutional requirements for spying on Americans and gather all the data about us that they can by listening to phone calls and reading emails, as well as gathering the banking information, credit card information, utility bills, postal mail, and medical records of everyone in America, without regard to individualized suspicion.
The government's behavior is premised upon the false belief that it can morally and constitutionally interfere with our natural right to privacy without due process and upon the absurd belief that surrendering personal liberty somehow keeps us safe.
As we know from the tragedy last week in San Bernardino, California, the government's strategy and practices failed to keep us safe. The governmental failure at San Bernardino was the confluence of a state government with antipathy and animosity toward the natural right of self-defense and a federal government attempting to devour far more data than it can handle.
The San Bernardino killings—like those in Newtown, Connecticut; at Virginia Tech; in Roseburg, Oregon; and in Paris—occurred on or near government property where lawful guns were banned. These no-gun zones are the most dangerous places on the planet when a person armed to the teeth and determined to kill enters upon them.
In the no-gun zone in San Bernardino where the killings occurred, even off-duty or retired law enforcement personnel, trained and continually qualified in the use of firearms, and private people lawfully authorized to carry handguns are required to check their guns at the door.
Can the civilian use of guns keep us safe? Of course it can. The police simply cannot be everywhere. Anything that diminishes the shooting-fish-in-a-barrel environment of no-gun zones is an improvement over the carnage we have witnessed in them. Think about it. In every mass killing—every one of them—when someone with a gun arrives determined to stop the killing, it stops; the killer flees or is disabled or is killed or dies by suicide.
No-gun zones are not only unconstitutional legislative limitations on the natural right of people to use modern-day means for self-defense but also an invitation to disaster. And they are established by local municipalities with the consent of state governments.
The federal failure is born of an antipathy to constitutional norms and a reluctance to engage in meaningful human intelligence on the ground. Instead of gathering all they can about everyone, the feds should concentrate on those about whom there is some reasonable belief to warrant some investigation. The feds should know the neighborhoods where the suspicious live and work as well as they know their own computer screens.
Even the National Security Agency (NSA) itself has admitted to data overload. In 2013, the director of the NSA at the time, Gen. Keith Alexander, was asked how many plots his spies had unearthed in their then-seven years of spying on everyone in the U.S., and he replied under oath, "About 54." Then he corrected himself and amended his answer to one or two. When asked to identify them, he declined.
Why weren't a recently married couple with Middle Eastern backgrounds—one of whom had been born here, the other of whom had immigrated here and achieved permanent legal residence only through marriage; both of whom recently had been stockpiling huge amounts of military-style weaponry and ammunition; both of whom had just received more than half their combined annual income in a single wire transfer to their joint bank account; both of whom had been practicing the use of their hardware at a gun range; one of whom had been known to hate Jewish people and had suddenly left his local mosque—generally known to the all-seeing and all-hearing NSA?
Because the NSA has abandoned traditional techniques of on-the-ground, in-your-face human intelligence in favor of sitting in front of computer screens. And that has produced a haystack of data so gigantic in size that by the time the needle of terror plotting has been found, it is often too late.
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The post Cutting Constitutional Corners Won't Save Us From Terrorists appeared first on Reason.com.
]]>In an effort to draw attention away from the intelligence failures that permitted the attacks of 9/11 and create the impression that it was doing something—anything—to avoid a repeat, the federal government tampered seriously with freedoms expressly guaranteed in the Constitution. Its principal target was the right to privacy, which is protected in the Fourth Amendment.
At President George W. Bush's urging, Congress passed the Patriot Act in October 2001. This 315-page statute passed the House of Representatives with no debate, and there was very limited debate in the Senate. I have asked many members of Congress over the years whether they read this bill before they voted upon it, and I have yet to find a member who did. In the House, that would have been impossible; the bill was made available to representatives only 15 minutes prior to their vote.
This law permits FBI agents to write their own search warrants for business records, and it has been used to induce the Foreign Intelligence Surveillance Court (FISA) to issue warrants on a made-up basis to read emails and listen to telephone calls in real time. The members of Congress who voted for it were largely unaware of the liberties they were sacrificing.
The personal liberties that Congress surrendered have been a necessary bulwark against tyranny—the constitutional requirement of warrants as a precondition to searching homes and records, with warrants based on probable cause and specifically describing the place to be searched and the person or thing to be seized.
When Edward Snowden revealed the nature and extent of the domestic spying that the government unleashed upon us post-9/11 and made us all aware of its use of the Patriot Act to do so, the authors of the Patriot Act expressed outrage and anger.
What was the government doing?
The government was secretly gathering data on all of us and using warrants that were not based on probable cause and that did not specifically describe the place to be searched or the person or thing to be seized. When members of Congress realized that they, too, were being spied upon, the outrage grew. That outrage and anger metastasized into a new law enacted earlier this year, called the USA Freedom Act, which took effect this week. That law, its supporters have argued, will tame the National Security Agency (NSA) into constitutional compliance and keep its 60,000 agents and contractors out of our private affairs. In fact, it is now worse.
The new law permitted the expiration of Section 215 of the Patriot Act—the section used by the NSA to justify its collection of undifferentiated bulk data about everyone. But it also requires the telecoms and Internet service providers to retain their records for five years, and it gives the NSA instant access to those records whenever it needs them.
How can the NSA get instant access to your emails and phone calls?
Quite easily. Both the Patriot Act and the USA Freedom Act unconstitutionally do away with the probable cause requirement for warrants. Those two laws permit the Foreign Intelligence Surveillance Court to issue warrants based on the standard of "governmental needs" rather than probable cause. This is a profoundly unconstitutional standard, and one that has resulted in spying on all people all the time.
In reality, "governmental needs" is no standard whatsoever, as the government will always claim that it needs what it wants. "Governmental needs" is the hateful standard that was used by the British government when it secretly obtained warrants to enter the homes of the colonists. This provoked the Revolution and produced the Fourth Amendment.
Though Section 215 of the Patriot Act has expired, the NSA's other authorities to spy have not. The propaganda that NSA computers have been shut down is false. Its computers are still in the telecom and Internet service providers' facilities and are operated by NSA agents remotely.
Nevertheless, Section 702 of the Foreign Intelligence Surveillance Act and an October 2001 executive order by President Bush are still valid, and both bypass the Constitution and continue to permit mass collection of bulk data. Section 702 permits warrantless surveillance on Americans who speak with foreigners, and the NSA has persuaded the FISA court to issue warrants to intercept the calls of the folks to whom those Americans speak, to the sixth degree. That alone encompasses everyone in the United States.
The Bush executive order was given to all military intelligence agencies—of which the NSA is but one. It instructed the military to intercept the telephone calls of anyone in America it wishes, without seeking any warrants.
Does all this unconstitutional spying—whether pursuant to the Patriot Act, the USA Freedom Act or an old presidential executive order—keep us safe? It certainly does not keep our liberties safe. It produces too much material for the government to evaluate. The recent Paris killers communicated with one another using ordinary cellphones and emails. Yet the French government, whose legal authority to spy is broader than our government's, missed them. And the NSA, which spies on the French government, missed them.
The Fourth Amendment has numerous virtues, but foremost among them is a double-sided coin. One side is the requirement of individualized probable cause. When followed, that prevents the government from using general warrants (search wherever you want, and seize whatever you find), the hallmark of totalitarian governments. By confining the government's authority to search only to those cases about which it has suspicion, the other side of that coin forces the government to focus on the bad guys. When it does that, the government will be far likelier to stop them than when it gathers all it can about everyone.
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The post Think NSA Spying Has Stopped? Think Again appeared first on Reason.com.
]]>The tragedy in Paris last Friday has regrettably been employed as a catalyst for renewed calls by governments in western Europe and even in the United States for more curtailment of personal liberties. Those who accept the trade of liberty for safety have argued in favor of less liberty. They want government to have more authority to intrude upon the daily lives of more innocent people. Their targets are the freedoms of speech and travel and the right to privacy. Their goal is public safety, but their thinking is flawed.
The clash between liberty and safety is as old as the republic itself. The United States was quite literally conceived in liberty. In the Declaration of Independence, Thomas Jefferson painstakingly listed the ills and evils of the British government's administration of the Colonies. There were no complaints about the absence of public safety; rather, Jefferson's "long train of abuses" cataloged the British government's interference with the colonists' personal liberties.
What has made the declaration so enduring and unique in world history is its unambiguous embrace of the natural law as its explanation of the origin of our rights. The British king thought he reigned by the will of God—the so-called divine right of kings.
Jefferson, influenced by the British philosopher and political theorist John Locke, turned that belief on its head. He argued that our liberties are natural, even inalienable, because they stem from our humanity, which is a gift from God. How could the same God have given us natural, inalienable personal freedoms and also have given the king the natural right to interfere with those freedoms?
The declaration's answer is the profound rejection of the moral legitimacy of any government that lacks the consent of the governed, as well as its articulation of the Judeo-Christian ethic of valuing human life and its acceptance of the belief that humans possess inalienable rights "endowed by their Creator."
Notwithstanding the values of the Declaration of Independence, big government and petty tyranny reared their ugly heads almost at the start of the republic. In 1798, the same generation—in some cases the same human beings—that wrote in the First Amendment that "Congress shall make no law … abridging the freedom of speech" also enacted the Alien and Sedition Acts, which punished speech critical of the government. Abraham Lincoln locked people up for speaking out against the Civil War. Woodrow Wilson locked people up for singing German beer hall songs during World War I. FDR locked people up just for being Japanese-Americans in World War II. All of this was later condemned by courts or Congresses—and surely by enlightened public opinion.
It is in times of fear—whether generated by outside forces or fomented by the government itself— when we need to be most vigilant about our liberties. When people are afraid, it is human nature to accept the curtailment of liberties, whether it be with speech or travel or privacy, if they become convinced that the curtailment will somehow keep them safe.
But if Jefferson and all the history and tradition of American cultural and legal thought have been correct, these liberties are natural rights, integral to all rational people. I can sacrifice my liberties, but I cannot sacrifice yours. Personal liberty is subject only to due process, not majoritarianism. Stated differently, we can only morally and legally and constitutionally lose our personal liberties when our personal behavior has been adjudicated as criminal by a jury after a fair trial; we can't lose them by a majority vote of our neighbors or a majority vote of our representatives in government or a presidential executive order.
Moreover, the Paris killings, the Fort Hood massacre, and the Boston Marathon killings are all examples of the counterintuitive argument that the loss of liberty does not bring about more safety. It does not. Rather, it gives folks the impression that the government is doing something—anything—to keep us safe. Because that impression is a false sense of security, it is dangerous; people tend to think they are secure when they are not. In fact, the government's reading everyone's emails and listening to everyone's telephone calls is making us less safe because a government intent on monitoring our every move suffers from data overload.
Because government is buried in too much data about too many folks, it loses sight of the moves of the bad guys. Add to this the historical phenomenon that liberty lost is rarely returned—as a new generation accustomed to surveillance attains majority, surveillance seems the norm—and you have a dangerous stew of tyranny. Just look at the Patriot Act, which permits federal agents to bypass the courts and write their own search warrants. It has had three sunsets since 2001, only to be re-enacted just prior to the onset of each—and re-enacted for a longer period of time each time.
Since the Charlie Hebdo massacre in Paris in January, the police in France have been able legally to monitor anyone's communications or movements without a warrant and without even any suspicion. Today they can break down any door and arrest whomever they please, and this past weekend, the French Cabinet declared that authorities can confiscate all firearms in Paris. All that gives law enforcement a false sense of omnipotence over the monsters.
Only good old-fashioned undercover work—face to face with evil, what the professionals call human intelligence on the ground—can focus law enforcement on the bad guys. And an armed citizenry strikes terror into the hearts of would-be killers and even stops them before they complete their horrific tasks. But don't try telling that to the French government.
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The post Paris, Fear, and Freedom appeared first on Reason.com.
]]>Earlier this week, a federal appeals court in New Orleans upheld an injunction issued by a federal district court in Texas against the federal government, thereby preventing it from implementing President Barack Obama's executive orders on immigration. Critics had argued—and two federal courts have now agreed—that the orders effectively circumvented federal law and were essentially unconstitutional. Though the injunction on its face restrains officials in the Department of Homeland Security (DHS), it is really a restraint on the president himself.
Here is the back story: President Obama has long wished to overhaul the nation's immigration laws to make it easier for people who are here illegally to remain here and to make it easier for them eventually to acquire the attributes of citizenship. He may have a big-hearted moral motivation, or he may have a partisan political motivation. I don't know which it is, but his motivation has driven him to use extra-constitutional means to achieve his ends.
During his first term in office, he attempted to have federal laws changed—quite properly at first—by offering proposals to Congress, which it rejected. That rejection left in place a complex regulatory scheme that is partially administered by DHS and partially by the Department of Justice. It left about 11.3 million people unlawfully present in the United States.
The conscious decision of Congress not to change the law in the face of such a large number of undocumented people here left those people, adults and children, exposed to deportation. It also left them entitled to financial benefits paid for by the states in which they reside.
Deportation is a lengthy and expensive process. The courts have ruled that all people subject to deportation are entitled to a hearing, with counsel paid for by the government. If they lose, they are entitled to an appeal, with counsel paid for by the government. The government has teams of prosecutors, defense counsel, and judges who address only deportations. The highest number of people the government has successfully deported in a year is about 250,000, which was done in 2013. If you add removals without trial (many are voluntary) and rejections at the border, the number swells to 438,000 a year.
While awaiting deportation, those people here unlawfully and not confined are entitled to the social safety net that states offer everyone else, as well as the direct benefits states make available to citizens, such as public schooling, access to hospital emergency rooms, and housing and personal living assistance.
Frustrated that Congress thwarted his will, President Obama—resorting to his now infamous and probably regretted one-liner that he can govern by using a pen and a phone—issued a series of executive orders in 2012 to various federal agencies, directing them to cease deportation of undocumented people if they complied with certain standards that the president wished of them. The standards, compliance with which would bar deportation, were essentially the same as those that the president had sought and Congress had rejected.
Can the president write his own laws or procedures?
In the litigation that came to a head early this week, 26 states, led by Texas, sued the federal government. In that lawsuit, the states argued that they would be made to endure unbearable financial burdens if the undocumented folks stayed where they are and if the states continued to make the same social safety net available to them as they make available to their lawful residents. Thus, the states argued, the president forced the states to spend money they hadn't budgeted or collected to support a legal scheme that Congress had not only never authorized but expressly rejected.
Can the president write his own laws and procedures?
The states also argued in their lawsuit that if the DHS and DOJ complied with the president's executive orders, those federal departments would be exceeding their authority under the statutes because the president was exceeding his authority. This is a president who has argued dozens of times in public that he is not a king and that he lacks the ability to recast the laws as he wishes they had been written.
Can the president write his own laws and procedures?
In a word: No. The president can issue executive orders to officials in the executive branch of government directing those officials to enforce the laws as the president wishes them to be enforced— within the letter and spirit of those laws. But those executive orders cannot write new laws or revise old laws or ignore existing laws that the Congress clearly expects to be enforced. That is just what a federal district court judge ruled earlier this year and just what a federal appellate court ruled in affirming the district court earlier this week.
All people who embrace the rule of law—whether they are for open borders or for an impenetrable border wall—should embrace these rulings because they keep the president within the confines of the Constitution, which he has sworn to uphold.
Under our constitutional system of supposedly limited government, all legislative power is vested in Congress. The president enforces the laws; he doesn't write them. His oath of office commits him to preserve, protect and defend the Constitution, and it further commits him to enforce the federal laws "faithfully"—meaning whether he personally agrees with them or not.
The clash between the president and the courts is as old as our republic itself. Courts are traditionally loath to interfere with the business of Congress or the president. Yet when the behavior of another branch of government defies core constitutional norms, it is the duty of the courts in a case properly before them to say what the Constitution means and to order compliance with it.
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