Category Archives: Courts

Holder’s Defense

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On 15 May, Attorney General Eric Holder testified under oath before the House Oversight and Government Reform Committee that

With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy.

Yet he had already been consulted concerning, and subsequently approved, a search warrant application to search the personal emails of an individual reporter (James Rosen of Fox News), a warrant that said in part

Because of the Reporter’s [Rosen’s] own potential criminal liability in this matter….

A three-page Department of Justice letter to the Chairmen of the House Judiciary Committee and that committee’s Subcommittee on Crime, Terrorism, Homeland Security, and Investigations is cynically unresponsive (quite aside from the fact that while the chairmen had addressed their concern on the “disconnect” to Holder, the latter didn’t deign respond, instead having an underling do so).

The letter devoted two and a half pages first to piously proclaiming Holder’s reverence for the role of a free press in American society and then to outlining the way getting warrants to search members of the press is supposed to work.  The underling then proclaimed that there was and is no disconnect between the facts of Holder’s testimony and the fact of the warrant’s accusation.  That’s it—just a bald, unsubstantiated pronouncement.  The underling offered not the least shred of evidence to support that claim.  The underling did, though, include this shocker in his penultimate paragraph:

At no time during the pendency of this matter—before or after seeking the search warrant—have prosecutors sought approval to bring criminal charges against the reporter.

DoJ and writers of the Left have made much of that word “potential,” saying that there was no prosecution after the fact, as though this non sequitur eliminates any potential.

Yet Holder did not testify “with regard to prosecution;” he testified explicitly to its potential.  And the warrant he’d already approved at the time of his testimony spoke explicitly about that potential.

It’s clear that Holder still has some tap dancingexplaining to do in order to reconcile his sworn testimony with the content of the search warrant he’d approved prior to his sworn testimony.

But there’re an additional couple of questions in my mind that goes to Holder’s fitness as the US’ chief prosecutor.  What kind of prosecutor accuses a man of criminal activity—that warrant—in order to obtain a search warrant while, at the time of the accusation, having no intent of prosecuting that man should the warrant produce the relevant evidence?

Did Holder lie to the judge in his warrant—he didn’t consider the reporter to be “potentially” criminally liable at the time?  Related to that, is it normal DoJ practice to deliberately mislead a judge with such ruses in order to get a warrant to conduct a search?  And: if the warrant is unobtainable without such shenanigans, how legitimate can the warrant be?

The DoJ letter can be read here.  The Rosen search warrant can be read here.

Some Later Thoughts on Obama’s Counterterrorism Speech

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President Barack Obama had this to say, also, in that…speech:

We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.

Let’s see how he did that:

He banned interrogation techniques that produced results, after torture had already been banned for years.

He’s been pushing for five years to try terrorists and other illegal combatants as common criminals and to try Guantanamo Bay Detention Camp in New York courts or to release them outright.

He interrupts interrogations in progress in order to read the prisoner his Miranda “rights.”

He had his Attorney General drop a voter intimidation case involving the New Black Panthers and their white voter victims after the particular NBP miscreants had pled out.

He’s done nothing material about his DoJ’s program of running guns to Mexican drug cartels.

He’s had his HHS Secretary “encourage” fund “contributions” to his federal health insurance exchange from the insurance companies she regulates.

He’s doing nothing material about his Treasury Department’s IRS (which he falsely claims is an “Independent Agency”) program of targeting Americans and groups of Americans of whom he disapproves for the special treatments of tax audits, invasion of their donor lists, deliberate and prolonged delays on finalizing their tax exempt status applications.

He’s actively covering up his and his State and Defense failures in the run-up to the Benghazi terrorist attack in which an American ambassador and three men attached to him were murdered, their failures during the attack, and their failures in the aftermath.

He’s doing nothing material about his DoJ’s assault on our free press via secret seizure of phone records, emails, and obtaining search warrants by falsely accusing individual journalists of criminal activity.

He’s played a couple of rounds of gold with the House leadership and invited them to dinner, and then he’s castigated them for not kowtowing to him and giving him everything he wants.

That’s a powerful alignment.

Progress

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Recall that the DC Circuit had struck down President Barack Obama’s “appointment” of three of his folks to the NLRB, ruling in blunt terms that these appointments were unconstitutional since they had been made while the Senate was in session.

Now the 3rd Appellate Circuit, centering its opinion on the “appointment” of Craig Becker in March 2010, has expanded on that for its area of jurisdiction (Delaware, New Jersey, and Pennsylvania), ruling that rulings made by this unconstitutionally constituted board were without effect since the NLRB, lacking a quorum, had no capacity for issuing its rulings.  The 3rd Circuit’s ruling says in part

We hold that the “the Recess of the Senate,” in the Recess Appointments Clause refers to only intersession breaks.  As a consequence, we conclude that the National Labor Relations Board panel below lacked the requisite number of members [three] to exercise the Board’s authority.

The narrow outcome of the ruling is this:

…a disputed union election that occurred at a New Jersey nursing home.  The NLRB denied the nursing home’s motion that the board illegitimately forced the company to recognize unionized managers.  The Appeals Court ruled that the board did not have the authority to dismiss the motion because of the recess appointments.

The broader outcome of the ruling is to invalidate over 900 rulings issued by the NLRB while it had no quorum with which to do so, including more than 200 since the board’s current makeup was ruled unconstitutional by the DC Circuit, which has national jurisdiction in such matters.

This can have only salutary effects for our country.

Time to Fire a Judge?

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Last month US Federal Judge Edward Korman ruled that the Food and Drug Administration must permit the morning after pill—the so-called Plan B pill—to be sold over the counter, to be stocked on store shelves rather than held behind the pharmacist’s counter, and to be saleable to “women” of all ages—i.e., including to children.  And saleable to these children without any parental involvement, which is the outcome of eliminating the FDA’s by-prescription and age-limited sales.  That’s bad enough.

Now, though, in response to the government’s decision to appeal this ruling and to ask that Korman stay his order pending that appeal, Korman is cynically decrying as politics the government’s objection to his interference in family matters—while demonstrating the involvement of his own politics in this matter.

Korman told an assistant US attorney that the FDA ruling [partially implementing Korman’s ruling] was a cynical attempt to “sugarcoat this appeal of yours.”

I don’t often agree with this administration, but on this matter, I do.  Korman went on, accusing Justice’s lawyer of “intellectual dishonesty” and calling further delays “a charade.”  Because the lawyer disagreed with Korman’s ruling and its efficacy.

He wasn’t finished.

When the government lawyer argued that delaying Korman’s order while it was on appeal was in the public interest, the judge responded, “Is there a public interest in unwanted pregnancies…that can often result in abortions?”

And

The judge…expressed outrage at another provision under the new FDA rules that would require government-issued photo identification to get the pills, placing an “impossible burden” on disadvantaged people without IDs.

And

“The poor, the young and African-Americans are going to be put in the position of not having access to this drug,” [Korman] said.

Minors are, by definition, incapable of making their own decisions without adult guidance.  Thus, I have some questions for Korman:

  • is there a public interest in allowing minors to act on so serious a matter solely on their own recognizance?
  • is there a public interest in cutting parents out of the decision-making of their minor children, leaving children with no adult guidance?

Korman’s objection concerning access plainly is not true.  Parental involvement gives them the access those parents—not a remote, disinterested judge—deem appropriate.  The prescription gives them access through the guidance of another adult—generally with the parents involved here, also.

And so a final question:

  • is there a public interest in leaving the many unaided by adult guidance by barring an imperfect system which, if implemented, would leave a few without that guidance?

Korman’s arrogance in decrying the government’s representatives and the government for their daring question his ruling with its pseudo-logic, frankly, is worse than his ruling with its pseudo-logic.  Judges aren’t kings whose decisions are above the questioning of the judges’ inferiors.  Korman needs to be reminded of that.  Forcefully.

In the end, Korman officially refused to stay his order pending appeal.  In his ruling, he opined, in part,

that if the status of these drugs is changed and later reversed, it can lead to situations in which women mistakenly believe that they can obtain the drug without a prescription or at certain locations where it used to be available, but is no longer.

This argument assumes that defendants have a likelihood of success on the merits and is largely an insult to the intelligence of women.

Because the children newly granted access behind their parents’ backs are women.  And because Korman has never dealt with a government rule from the outside, being himself inside government.

On the question of identification, Korman does have a valid point:

He also questioned why the government takes an opposite position in voting-rights cases, where the US has argued that identification requirements discourage some people from voting.

But this isn’t enough to validate his overall ruling or his refusal to stay it pending appeal.  He still needs to be reminded, decisively, of his place in our employment as a member of our government.

A Thought on Gun Control

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Recall that last November the 2nd Circuit upheld a New York law requiring those who want to carry handguns to show “a special need for self-protection.”

There is an underlying problem with this.  The Federal Constitution does not allow the Federal government to decide the purposes for which it will permit citizens to “keep and bear arms.”  The Constitution requires the Federal government not to infringe citizens’ right to keep and to bear, period.  There is no “except for when the government deems otherwise” caveat; the clause reads the right of the people to keep and bear Arms, shall not be infringed.

This also is clear from the authors’ understanding of the terms of relevance here: from the 10th edition of Johnson’s Dictionary we have: Infringe: 1. To violate; to break laws or contracts.  2. To destroy; to hinder.  That definition has not changed much, if at all, in the intervening more than one hundred years since the Constitution was written.

Additionally, the right to keep must mean the right to bear anywhere, else the keeping has no import.  Moreover, the right to bear is as explicitly stated in the Clause as is the right to keep, and that right has no limit on where stated, and so there is no limit.

On top of that, in A well regulated Militia, being necessary to the security of a free State, “State” refers to the constituent States of the United States, not to the United States itself.  Again, the Federal government has no say.

Finally, Heller and McDonald made explicit the extension of these 2nd Amendment clauses to the inside of the individual States—all of them.

It should be clear, then, even to a New York-based 2nd Circuit, that the government has nothing to say on the purpose a private citizen, of any State or of the United States, might have for possessing or carrying about his privately owned weapon.  Indeed, as Judge Richard Posner of the 7th Circuit notes, a citizen’s need can be acute everywhere, and with particular reference to “a special need for self-protection,” Posner had this in his opinion in Moore v. Madigan:

Twenty-first century Illinois has no hostile Indians.  But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.  A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside.  She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.

It’s certainly true that some reasonable State-level (but not Federal) limits on the where might be applied.  It’s reasonable, for instance, to uphold the right of a private business owner to bar weapons from his establishment.  It’s reasonable for a State to bar private citizens’ weapons from a courtroom.  It’s reasonable for a State to bar the bearing anywhere (and so to bar the keeping) by those convicted of violent crimes.  It’s reasonable for a State to bar the bearing in public by any other citizen absent that citizen’s possession of a license demonstrating his understanding of the handling and maintenance of his weapon.

But there’s very little else that a government might do to inhibit those 2nd Amendment rights.