Category Archives: Courts

Subpoena Fight

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The House Oversight Committee has subpoenaed Hunter Biden to be deposed in a closed-door hearing. Biden has responded, through his lawyer, that he’ll be there, but only if the hearing is public. Supposedly, this sets up a subpoena fight.

It needn’t, and Oversight Chairman James Comer (R, KY), has said so, although he has offered, unnecessarily IMNSHO, a compromise to have Biden testify in an open Oversight hearing after he’s sat for the close-door deposition.

If the impasse is not broken, Congress can move to enforce its subpoena in several ways. Republicans can hold Biden in contempt or file a civil suit to compel him to testify. These options require the Department of Justice or the courts to enforce, respectively. But, if Republicans want Hunter Biden’s testimony soon, investigators may have to acquiesce to his lawyer’s demands for a public hearing or awaken a long dormant Congressional power to compel the younger Biden to appear.

The correct move is a) and d) above. If Biden is a no-show, he should be held in criminal contempt and referred to DoJ for prosecution (even though AG Merrick Garland is unlikely to do so). In parallel, the House should exercise its authority to go get Biden and compel his (closed-door) testimony.

That fourth option is the House’s and Senate’s—”the Legislature’s”—Inherent Contempt Power. This power permits each house to arrest and detain an individual who is found to be obstructing Constitutionally defined duties and responsibilities of the legislature. The latest use of this power to compel testimony was the Senate’s 1934 Jurney v MacCracken case. William MacCracken at the time was refusing to comply with a Senate subpoena, the Senate sent its Sergeant at Arms to arrest him and present him before the Senate for a contempt trial, and on conviction, he was held in jail in the Senate’s custody (not DoJ’s or any other police facility’s) until he cleared his contempt by testifying as subpoenaed. Jurney was the Supreme Court upholding the Legislature’s—the Senate’s in that case—authority to exactly what it did.

So it should be with Biden in the House. The matter could move apace, with the long pole in this tent simply being finding Biden in the first place and transporting him to the House floor for trial.

Regarding Oversight’s subpoena in particular, there’s nothing about which to fight, or negotiate, or even discuss. The subpoena has been issued for a closed door deposition on a particular date; the only thing for Hunter Biden to do is to appear for the deposition on the appointed date. Or suffer the ignominy of arrest, House trial for contempt, and then jail in House custody until he testifies.

Full stop.

Convenience and the FBI

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Stewart Whitson, late of the FBI and currently Foundation for Government Accountability Legal Director, decried in his Tuesday Wall Street Journal op-ed, a Consumer Financial Protection Bureau effort to completely eliminate the ability of credit-reporting companies to sell credit-header data to law enforcement agencies, including to the FBI. Those header data include a variety of identifying material but, as Whitson was careful to emphasize, no financial information.

This, actually, is one of the few things the CFPB would get right were it to follow through.

In support of his plaint, Whitson related an 8-year-old incident in which he and a partner were conducting surveillance on a suspect and observing his contact with a third individual. Whitson bragged about being able to use credit-header data—but no financial data, mind you—to contact that third individual, arrange a meeting, and through that, foil the suspect’s planned terrorist attack.

Without the credit-header data, we might not have been able to contact the occupant for a while, giving [the suspect] more time to carry out his attack.

Whitson bragged about FBI success with such purchases and then put his disingenuous question.

I worked on hundreds of terrorism-related investigations at the FBI, all of which relied on credit-header data. Why doesn’t the CFPB want law enforcement to have quick access to this information?

Perhaps because the purchases are, at bottom, violations of our Constitution’s inconvenient 4th Amendment, regardless of their convenient-to-government speed.

How inconvenient it is, after all, to follow the Constitution’s requirement for warrants before searches occur. That the FBI got lucky—or even that purchasing personally identifying data (the lack of financial data being a cynically offered red herring here) materially helped—in no way legitimizes the FBI’s bypassing Constitutional requirements.

Get the warrants. If it often takes too long to get them, and that’s a legitimate beef, work on streamlining the process through the political branches of our government: the House and Senate. The Executive Branch does not get to skip the hard work or usurp political branch authorities.

Not even when its FBI claims that anxious and enthusiastic mothers at school boards are akin to domestic terrorists or that traditional Catholics are behaving suspiciously.

A Voting Rights Discrimination Case

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The 8th Circuit has ruled that private parties cannot bring suit over voting rights discrimination under Section 2 of the Voting Rights Act; only the US Attorney General can. The 8th Circuit stands alone among courts and against long-standing precedent here. It’s still correct on the matter.

The court’s decision, in summary, said the

Arkansas branch of the NAACP and another organization couldn’t challenge the district lines drawn for the Arkansas House of Representatives after the 2020 census.

Circuit Judge David Stras, for the majority:

If the 1965 Congress “clearly intended” to create a private right of action, then why not say so in the statute? If not then, why not later, when Congress amended § 2?

Indeed. What does the text of the law say, rather than what do judges want it to say? What the law says, as Stras says, is clear. § 2 and the 15th Amendment to our Constitution both prohibited purposeful discrimination in voting rights and district boundary-drawing, and enforcement of that was put squarely in the hands of the US Attorney General and nowhere else. Congress subsequently amended § 2 to add a discriminatory-effects test. Congress did not, though, broaden who had authority to bring suit under the section, not even to add State Attorneys General, much less private parties.

My concern here, though, is the logic of the dissenting judge, Chief Judge Lavenski Smith [ellipses in the quoted part, which Smith is quoting from Singleton v Merrill, are Smith’s].

“Since the passage of the Voting Rights Act, federal courts across the country, including…the Supreme Court…, have considered numerous Section Two cases brought by private plaintiffs.” … Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection[.]

Regarding that last, I repeat: what does the text of the law say, rather than what do judges want it to say?

Regarding Smith’s prior reference to precedent, he’s right about the importance of precedent. However, it doesn’t matter how long is the line for an existing court precedent; if the precedent was wrongly decided (or if the conditions warranting it no longer exist), that precedent is legitimately, and must be, overturned.

The 8th Circuit ruling can be read here.

Only Reliable Way to Enforce Lease Sales

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The 5th Circuit has ruled—correctly IMNSHO—that the Biden administration must sell oil and gas leases in the Gulf of Mexico as existing law requires and get it done within the next 37 days.

That’s good news, but it’s insufficient since it lacks an enforcement mechanism. The only reliable enforcement mechanism under this Biden administration is to deem the leases currently applied for to be sold under the parameters provided in the lease applications and to deem future lease applications, until the 73 million acres in question are committed, similarly sold after 37 days, the court’s mandated time limit for getting the Gulf’s acreage leased out.

The court’s ruling can be read here.

Religious Persecution

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Finland Member of Parliament Päivi Räsänen and Lutheran Bishop Juhana Pohjola stood (still stand?) accused by Finnish prosecutor Anu Mantila of the heinous hate speech crime of quoting from the Bible.

Finnish district courts said, no, and acquitted the two. The prosecutor objected and took the cases to a Finnish appellate court—where the two were once again acquitted. Räsänen:

It isn’t a crime to tweet a Bible verse, or to engage in public discourse with a Christian perspective. The attempts made to prosecute me for expressing my beliefs have resulted in an immensely trying four years, but my hope is that the result will stand as a key precedent to protect the human right to free speech.

Mantila’s weasel-worded rationalization of her decisions:

You can cite the Bible, but it is Räsänen’s interpretation and opinion about the Bible verses that are criminal[.]

Well, no, they’re not, not within any universally recognized concept of free speech and opinion-uttering.

Mantila may well appeal again, to the Supreme Court of Finland. If she does, the case will cease to be a matter of prosecution (if it ever was); it will be naked religious persecution and a parallel direct attack on the principles underlying free speech.