Rule of Law

Rule of Law

Lois Lerner Gets Justice Department Favors

April 3rd, 2015 - 6:03 am

Lois Lerner has dodged another bullet, this time courtesy of the Justice Department. United States Attorney Ronald Machen announced that Lerner will not be prosecuted for being found in contempt of Congress. That’s hardly a surprise from Eric Holder’s Justice Department — a Department which, these days, specializes in protecting friends and attacking enemies.

But once upon a time, the Department of Justice took contempt of Congress seriously, as we shall see.

In the meantime, Republicans in Congress have vowed to utilize the sternest of measures against the Department’s refusal to prosecute Lerner. That means more angry press statements.


Machen said Lerner preserved her Fifth Amendment rights when she refused to testify to the House, even though she first made a long statement proclaiming her innocence. Conveniently, she did not allow herself to be cross-examined about her statement.

The Fifth Amendment means you can keep your mouth shut. It doesn’t mean you can keep your mouth shut except when you are professing your innocence. Lerner got the good without the bad, which was precisely her plan.

The entire IRS scandal can be understood very simply as a reaction to Citizens United, the case where the Supreme Court defended free speech rights and allowed Americans to talk about issues important to them. Obama and the Left hate free speech, and that’s why he used the 2010 State of the Union to mau-mau the Supreme Court that was assembled before him.

You may remember that Justice Samuel Alito responded just like Representative Joe Wilson did in another State of the Union address, though Alito didn’t use words.

The House of Representatives found Lerner in criminal contempt of Congress for refusing to testify and answer questions, even about her statement. Naturally, this finding will serve primarily to increase Lerner’s status among the fringe interests that have taken over the Democrat Party.

In another era, Lerner would be a pariah even to Democrats.

Speaking of another era, Americans might rediscover the saga of Gerhart Eisler. If you watch movies like Jim Carrey’s The Majestic, you might think people like Eisler didn’t exist.

Eisler was the real deal — a genuine Soviet agent working inside the United States with the full support of Hollywood leftists.


According to Allan Ryskind in Hollywood Traitors (Regnery 2015), Eisler was a Comintern agent trained by the Soviets to “capture a city … seize the most vital means of communication, lighting, water supply and … food.” Eisler was inside the United States to alter the direction of the United States.

But to Hollywood, that only made him a hero.

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Hey, Hey, Hey, Hey, Kansas City

March 31st, 2015 - 10:54 am

Just a short note that I’ll be speaking at the University of Missouri School of Law, Wednesday, April 1, at noon.

The topic is Voting, Elections and Race Polarization in America.

I’ll be talking about many of the issues covered here at PJ Media, namely how elections have become the latest contentious area involving race and civil rights issues.  I’ll also discuss how various interests benefit from a racially divided and polarized electorate.  Voter ID, the events in Ferguson and other election laws are part of an overarching fight involving color, politics and process.

The event is free and sponsored by the Federalist Society.

Nightcrawling the Internet

March 27th, 2015 - 8:10 am

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In the movie Nightcrawler, we meet Lou Bloom, a new breed of reporter. Bloom races around the nighttime streets of Los Angeles and isn’t beyond dragging a bloody corpse a few feet for a better story. Played by Jake Gyllenhaal, Bloom is a megalomaniac who fancies himself a media pioneer gathering video for stories nobody else can get. The movie is a cautionary tale for the new media desperate for clicks at any cost.

It wasn’t long ago when a small stable of sources were the news. Those of us old enough to spend evenings with Walter Cronkite remember an age when credibility, no matter how illusory, permeated the news. Those replacing the Cronkite age might contemplate the allure of excess, the excess we see in Lou Bloom.

It may seem difficult to separate the excessive new media pioneers from the rest. Perhaps a moral and self-reflective approach makes all the difference. While the left loathes Matt Drudge and what the Drudge Report represents, an observer of the editorial choices of the Drudge Report cannot miss the profound morality that guides his editorial choices.

For example, the Drudge Report is a chronicle of good and evil in the world. Drudge reports on chaos of the sort conveyed by the wolf in Lars von Trier’s Antichrist. Indeed, “chaos reigns” in the world, and the Drudge Report chronicles it.


But Drudge isn’t all about man’s drift toward mayhem. He isn’t all about capturing the gory stories of scandal and brutality. It is also about the dignity of life, and goodness, and so often about faith and Pope Francis’ message of mercy and love. One cannot read the Drudge Report and not see it through religious eyes.

Drudge may be a modern echo of C.S. Lewis, showing us daily in sparse black and white, that “there is no neutral ground in the universe. Every square inch, every split second is claimed by God, and counterclaimed by Satan.”

Others in the new media world I have come to know have been guided by a similar sense of measured humility. But not all have, which takes us back to Lou Bloom racing through Los Angeles to get to the story before anyone else can, even if he has to make things up along the way.

In Nightcrawler, Lou Bloom routinely invades the personal dignity and space of victims. In a central scene, Bloom wanders into a mansion where a mass killing has taken place, and videos the slain where they fell. A woman stares at the ceiling with her chest opened by a shotgun blast. Bloom delivers the close-up. Naturally, Bloom considers all of this newsworthy. It would be like a newspaper routinely publishing the names of sexual assault victims.

Gyllenhaal’s character is base and amoral. His “reporting” reflects this lack of character.

The love of money drives Bloom. He is a reporter with a videotape in one hand, while he holds out the other hand for cash.

At the core of Bloom’s reporting is exaggeration and embellishment. Upon arriving at a fatal head-on crash before the fire department, Bloom drags a bloody corpse ten yards to get a better shot. He teases stories as something bigger than they really are. He concocts myth and packages it as news.

Bloom’s shady reporting is accompanied by a megalomaniacal dose of self-importance, combined with a persistently loathsome self-promotion. He is openly sanctimonious about his work, because he is oh-so-important.

“The name of my company is Video Production News,” he lectures a news director. “A professional news gathering service. That’s how it should be read and that’s how it should be said. You will take me around and introduce me as President of Video Production News, and remind them of my many other stories.” (You Tube video here.)

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His “many other stories.” You can almost hear Bloom complaining about other people stealing his work. His self-importance is matched by his lack of self-awareness.

Bloom also attacks others in his line of work. After first seeking advice from fellow video reporter Joe Loder (played by Bill Paxton), Bloom burns bridges. He tampers with Loder’s vehicle, resulting in a bloody accident where Loder is seriously injured. Naturally, Bloom makes his scalp part of the news — capturing video of Loder covered in blood being hauled into an ambulance.

Bloom is a self-important narcissist for whom the truth matters little. What matters is capturing a story of human lives in peril, of helping to create that peril and then pretending to be a neutral reporter reporting on the peril.

Bloom uses lies about his company to lure people toward his vision, such as his employee Rick (played by Riz Ahmed). Rick pays a heavy price for placing any faith in Bloom’s business model.

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Bloom loudly rejects the old ways of the news industry.

But like some corners of the new media, Bloom can’t find a moral equilibrium to replace the old ways. Is rage and selling sludge any more appealing than three networks a night reporting news?

Bloom’s version of the news comes from a dark place. It is a dark place where people are destroyed, where Bloom puts himself in the center of the news story, and proclaims moral legitimacy like some arbiter of justice, deciding whose reputation shall live, and whose reputation shall die. With his hand out for cash, Bloom’s version of the news is all about delighting in lives destroyed where exaggeration becomes the headline and the body.

His is not a version of the future, thankfully, that very many in the new conservative media share.

The Supreme Court has dealt a heavy blow to efforts — often by the Republican Party — to draw legislative districts that pack black voters into majority black legislative districts in order to elect black representatives.

In a case decided today arising out of Alabama state legislative plans, the Supreme Court held that the Voting Rights Act does not require the preservation and protection of legislative districts with percentages of black voters designed to produce black elected officials. Republicans and black politicians often argue that the Voting Rights Act requires line drawers to preserve proportional black representation by creating districts where black candidates are sure to win election. These plans help Republicans by bleaching out surrounding areas helping to elect Republicans.

Instead, the Court ruled that what must be preserved is the “ability to elect” minority preferred candidates of choice — who need not necessarily be minority candidates themselves. This means legislatures can dip below numeric thresholds which create majority black districts, and not necessarily offend the Voting Rights Act.

The opinion is here.

Here is the most important part, from the syllabus:

The District Court’s final alternative holding — that “the [challenged] Districts would satisfy strict scrutiny” — rests upon a misperception of the law. Section 5 does not require a covered jurisdiction to maintain a particular numerical minority percentage. It requires the jurisdiction to maintain a minority’s ability to elect a preferred candidate of choice.

Hence, nobody can claim now that the Voting Rights Act — either Section 5 or Section 2 — requires the packing of black voters into districts forever and ever at the same levels. Legislatures are free to use other alternative means to maintain the ability of minorities to elect candidates of choice. This undermines the argument, frequently used by those seeking to pack, that the Voting Rights Act requires proportionality of representation or black majority enclaves.

This part of the opinion makes it seem the days are gone where redistricting efforts must aim to preserve black faces in legislative bodies at all costs. Preserving a specific minority population percentage is NOT required by the Voting Rights Act, despite years of hearing from some people that it is. From the Court syllabus:

Here, however, the District Court and the legislature both asked the wrong question with respect to narrow tailoring. They asked how to maintain the present minority percentages in majority-minority districts, instead of asking the extent to which they must preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice. Because asking the wrong question may well have led to the wrong answer, the Court cannot accept the District Court’s conclusion.

Justice Clarence Thomas dissented on procedural grounds and noted the relationship between the DOJ and racial interest groups:

Long ago, the DOJ and special-interest groups like the ACLU hijacked the Act, and they have been using it ever since to achieve their vision of maximized black electoral strength, often at the expense of the voters they purport to help.

The case will be remanded to decide a number of remaining issues.

Decoding Obama’s Mandatory Voting Fantasy

March 23rd, 2015 - 8:20 am

There’s nothing that excites someone to vote like being forced to do it. But federal force is one of President Obama’s favorite things, so his recent announcement that mandatory voting might be a good idea is hardly a surprise.

Normally, Americans have an aversion to being told what to do. Imagine if a president had proposed mandatory prayer for all Americans. Most previous presidents thought prayer was a good idea, so why not prayer for everybody — by mandate?

Mandatory voting is just as unappealing. After all, part of the right to vote we hear so much about also includes the right not to vote. Americans have the constitutional right to reject the political process, check out and not vote. In fact, one might argue electoral apathy is a sign of a nation’s health. If things are going well enough, if people are content, then voting isn’t a priority.  Voting only rises in importance when the government manages to screw up people’s lives enough to make voting important again.

Deciding not to vote is still casting a ballot of a different kind. Or as Neil Peart put it in another context, “if you chose not to decide you still have made a choice.”

Let’s return to mandatory prayer.

President Obama thinks mandatory voting is a good idea.  As a progressive, he subscribes to the theology that a better, brighter future is just around the corner if only the machinery of government can be properly tuned to get us there. Apathy and nonparticipation, to progressives, is one of the pesky by-products of freedom, slowing our journey to utopia. Once everyone is forced to vote, those teeming masses will raise their collective fist high in the air and transform the country.

But what if a president preferred raising up America’s hands in mandatory prayer?

Naturally, we know what the progressive secular left would do with such a proposal. Laughter, ridicule and endless citation of the Free Exercise clause would follow. The pro-prayer president might respond that nationally mandated prayer — let’s just say on Fridays, for convenience — “could lift up and transform the nation.” But the laughter from the left would drown out the pro-prayer president. After all, we are a nation that believes in people exercising freedom of conscience, right?

So what if a president proposed mandatory speech? Every American might log onto and register their views on every issue. More speech is good, right?

Not a big fan of prayer or speech? Then fill in the blank with what you like best for your own mandate. Mandatory church. Mandatory quartering of troops. If not troops, mandatory quartering of AmeriCorps volunteers. Mandatory gun ownership. Mandatory party membership.  Mandatory recycling. Mandatory exercise followed by mandatory community picnics. Mandatory kale.

All of this starts to sound, dare I say, rather un-American. See, mandates are the ways of totalitarians.

Americans believe in freedom. If you don’t want to vote, don’t. Some elections just aren’t worth your vote. Some elections, you might not find a single candidate to be acceptable. If you choose not to vote, you still have made a choice.

But this is a president that seems all too comfortable with mandates, rules, and edicts, and is all too uncomfortable with freedom.  Years ago, Dorothy Rabinowitz called Obama the “alien in the White House.”  She wasn’t talking about where Obama was born. She was talking about how Obama doesn’t fit into the American experience of freedom or love of country.

Obama playing with the deeply offensive idea of mandatory voting only adds to this assessment.

So why do progressives want to force everyone to vote? It’s critical to understand this, because mandatory voting isn’t the only process scheme they’ve cooked up to transform the nation.

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The Joint Center for Political and Economic Studies bills itself as a nonpartisan think tank with a focus on racial issues that is distinctly above the fray.  This is how it describes itself:

Originally known as the Joint Center for Political Studies, the Joint Center brought together black intellectuals and professionals to provide training and technical assistance to newly elected black officials. Today, the Joint Center is recognized as one of the nation’s premier think tanks on a broad range of public policy issues of concern to African Americans and other communities of color.

Sounds mainstream, right?  So imagine my surprise when the Daily Beast published this gem from David Bositis, late of the Joint Center for Political and Economic Studies.

For example, Ferguson is two-thirds black, yet a majority of voters in their local elections are white. “Otherwise Ferguson would have a black government and a black police force, and if there was any justice in the world, they’d be suppressing white people,” Bositis says with a wry laugh.

A wry laugh indeed.  I’ve heard that laugh before.  When I was working on the voting rights case United States v. Brown, I used to hear that laugh.  The Brown case saw Bositis’ sense of justice play out in Noxubee County, Mississippi.

Noxubee County also was a majority black jurisdiction.

There, black political bosses in fact did discriminate against white voters through a complicated scheme involving voter fraud and other illegal acts.  I listened to audio tapes containing similar wry laughs of the perpetrators talking about the justifications for delivering payback to whites for the sins of their grandfathers.

I used to think this gutter mentality was confined to just a handful of people in rural Mississippi. Then I came to learn the one-way view of civil rights was more common than we knew.

Now, we can enjoy Mr. Bositis’ wisecracking to Eleanor Clift about payback against whites as “justice.”

Pay attention to Ferguson.  Mr. Bositis has adherents to this idea all over the place.

Hillary’s Crime: Section 1001

March 12th, 2015 - 4:50 pm

Shannen Coffin, former counsel to Vice President Dick Cheney, told Fox’s Megyn Kelly on Wednesday night that there is “no doubt” that former Secretary of State Hillary Clinton committed a felony when she didn’t turn over her email records as she left the State Department — if she signed the usual exit form given to all exiting employees.

The State Department’s “Separation Statement,” Form OF-109, can be seen here.

It requires the outgoing State Department employee to certify that all “classified or administratively controlled documents and material” have been “surrendered to responsible officials.” But it doesn’t just require the return of classified materials. It also requires the employee to certify that she has “surrendered to responsible officials all unclassified documents and papers relating to the official business of the Government acquired by me while in the employ of the Department.”

We don’t know if there were any classified or administratively controlled materials in the emails on Clinton’s home server. Perhaps she made sure no classified information reached her server homebrew. (If classified information was stored on her home server, then that would raise an entirely different set of concerns and potential legal problems for Clinton. Just ask David Petraeus.)

However, we do know positively that all emails “relating to the official business of the Government” were not returned to the government before the former secretary of state walked out the front door of the State Department in 2013.

She admitted at her press conference on Tuesday that she was just now turning over 50,000 pages of documents.

The final paragraph of OF-109 just before the signature lines warns that “Section 1001 of Title 18, United States Code, provides criminal penalties for knowingly and willfully falsifying or concealing material fact in a statement or document” submitted to the federal government.

Section 1001 is the catch-all provision that the Justice Department uses to go after individuals and witnesses who make false statements to government agencies and officials like FBI agents.

It prohibits making “any materially false, fictitious, or fraudulent statement or representation” as well as making or using “any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”

Section 1001 is routinely used by the FBI to prosecute people who don’t tell the truth to the government. In fact, some managers at the Justice Department instructed employees to threaten people with 1001 actions who were not fully forthcoming in civil investigations.

If Hillary Clinton signed this form, she could be prosecuted under 18 U.S.C. §1001. A knowing and willful violation is a felony, punishable by not more than five years in prison.

One of the most well-known recent cases of a prosecution under this statute was the conviction of Scooter Libby, the former chief of staff to the vice president, who was charged (among other charges) with making a false statement to an FBI agent in connection with the Valerie Plame case.

Celebrity and businesswoman Martha Stewart was also convicted under §1001 in 2004 for making false statements to FBI agents and investigators from the SEC who were investigating her for insider trading, a crime she was never charged with.

Of course, even if Hillary Clinton violated this statute, the probability that this administration and this Department of Justice would ever prosecute Hillary Clinton is probably slim to none. However, Shannen Coffin is certainly correct in his legal analysis. This virtually guarantees that the first question Hillary Clinton or the State Department will be asked by any congressional committee investigating this email fiasco is whether Secretary Clinton signed exit form OF-109.

If she did, then she is going to have a great deal of explaining to do to the American people as to why she believes she was above the usual rules and laws that apply to regular government employees and all the rest of us.

If you think you haven’t heard of “reformicons” or “reform conservatives,” don’t sell yourself short. You are already familiar with this latest movement within the Republican Party, albeit under different branding.

This piece, entitled “The Good Right” (as compared with … ?), sums up the Reformicon agenda this way:

 Yuval Levin, one of reform conservatism’s brightest thinkers, told Sam Tanenhaus that “a shrinking or scaling-back of government” was not his aim. He sought “an entire reimagining of it.” He argues that “a true Burkean conservatism would recast the federal government as the facilitator and supporter of local institutions who are a function of, and a contributor to, a “civil society.”

Sound familiar? It should, because we’ve seen a parade of politicians going back as far as Woodrow Wilson pushing the idea that government can work if just the right people were in charge.

There is so much wrong with this, it is hard to know where to begin.

We could begin at the beginning — 1776, that is — to wreck the philosophical foundations of the reformicons, or we could wreck their pragmatic claims using the writings and speeches of Ronald Reagan, or the “compassionate conservatism” of the 2000s.

So-called “reform conservatism” invariably leads to bigger deficits, bigger government, and failure.

Here’s a wager. Since most of the folks pushing “reform conservatism” are either academics or pundits, I wonder how many of them have ever actually worked inside a government.  Has a single “reformicon” ever served as a government employee and witnessed the hopeless level of waste and inefficiency from the inside? I am not referring to service as some “Special Adviser to the Undersecretary of Compassionate Programs.” I’m talking about being down in the bowels of state, local, or federal government.

Anyone? Raise your hand. Hello? Anyone?

I’ve done my stints in the bowels of both state and federal government. Here’s the bad news for “reform icons”: there is nothing about the nature of government on the inside that can be “fundamentally reformed.” It is what it is. And it isn’t a vehicle for transforming lives for the positive in the long run, or any of the high-minded aims “reformicons” think government can accomplish if just the right people were in power.

Reformicons push progressive policies with GOP branding. They invariably want to grow the size of government and increase spending, and they have never accomplished anything in the long run when given a chance. No Child Left Behind was a classic reformicon program, and outside of the people who wrote it, you are hard-pressed to find anyone who still supports it.

So here is my challenge: find me a reformicon that worked as a career employee inside government. Find me one who has seen the reality of government who believes government can be used to transform people’s lives or implement positive change. Law clerks, interns, undersecretaries, and special assistants don’t count.

Those of us who have been inside the bowels of government have seen government for what it is: a necessary evil. It gets by doing a few things fairly well: policing the streets, winning wars, filing UCC filings, resolving court disputes, issuing trademarks, and so forth.

Once it drifts outside a narrow band of relative competence, government fails.

The reformicon agenda is all about power. Usually, those advocating reform conservatism have a particular “transformative” policy they would like to see implemented. You’ll never guess who is on deck to implement those policies on the top end of the GS scale.

The reformicon agenda is all about power, not principles. The problem with government isn’t that the wrong people are in power. The problem with government is government.

The soaring federal debt of the last 15 years — yes, 15 — reminds us that those who seek to change the world though government programs usually never do, and they leave taxpayers and the children of taxpayers to clean up the mess.

(VIDEO: Click here to watch Adams on Fox and Friends discussing this story.)

An IRS employee tasked with trying to restore and obtain emails on Lois Lerner’s IRS computer’s hard drive was legally blind.  Stephen Manning, the deputy chief information officer for strategy and modernization at the IRS, submitted an affidavit in the True the Vote vs. IRS litigation regarding the persons and procedures used to attempt to recover Lois Lerner’s hard drive containing emails pertaining to Tea Party targeting.

The affidavit can be read here. Paragraph 14 describes the educational background of the person searching for data on Lois Lerner’s hard drive:

“According to the Specialist, prior to joining the Internal Revenue Service … training was completed through Lions World Services for the Blind.”


Sources familiar with the litigation confirm to me that the government confirmed that the IRS employee searching for the lost data was legally blind.

It was also revealed today that backup tapes of Lois Lerner’s emails were discovered in an off-site storage facility in West Virginia.  The inspector general of the Treasury Department learned that the tapes existed and drove to West Virginia to retrieve them.  Lawyers for the Justice Department as well as IRS officials have stated under oath or to the federal courts that no such backup tapes existed.  They were “recycled,” DOJ lawyers told the court.

Haven’t we seen this movie before?

Government officials working with leftist organizations decided to target the president’s political opponents just before the president faced reelection.   When the bad behavior is discovered, top officials in the administration and at the Justice Department use their power to hide the truth about the targeting of political opponents.  Officials at the Justice Department fight disclosure of information about the administration’s wrongdoing.  They even deny that tapes exist documenting communications about the wrongdoing by top government officials.  We then learn the stunning news that tapes with all of the information detailing who knew what and when, actually do exist.

Next we’ll hear that the backup tapes in West Virginia have a 17-minute gap.

One of the few applause lines Jeb Bush got at CPAC was when he said he’d fight affirmative action.  The only problem with that claim is that when given the chance as Governor, Bush opposed efforts to end affirmative action in Florida, calling those organizing against it “extremists” and “divisive.”

One person who has fought affirmative action is Jennifer Gratz.  Nobody can hold a candle to her when it comes to opposing racial preferences.  She writes this damning piece about Governor Bush that doesn’t square with his CPAC rhetoric.

Jeb Bush’s just-disclosed email communications while Florida’s governor (1999 – 2007) demonstrate a disturbing, but too-common ‘politician approach’ to dealing with racial equality and affirmative action.

In the emails, Bush describes his concern that a possible voter initiative in 2000 to end race preferences in state government hiring, contracting and public university admissions would be a “distraction” and “divisive”. He pledged to “do my part as governor to fight against it”.

Bush claimed to oppose race quotas and, indeed, issued an executive order in 2000 restricting some affirmative action policies while ordering Florida’s “state procurement officials to strive harder to award more business to minority contractors”.

The emails paint an unflattering portrait of a governor who claims to oppose race preferences, but considers citizens seeking to ban them through a petition drive as divisive extremists. Bush describes his watered-down initiative that restricted some race preference policies as tactical and necessary to preempt the looming citizen petition effort.