Category Archives: Law

The IRS Non-Scandal

They’re still withholding 7000 documents that show how (as Koskinen himself admitted) they were targeting conservatives.

As I wrote on an email list this morning (in the context of Big Data, Facebook and government spying): “I’m much more worried (or at least was in the last administration) about being targeted as a “right-wing” (i.e., someone who is a classical liberal, and gives a s**t about the Constitution) rather than Islamic terrorist, if they’re looking through my contacts and statements. And I think that the previous administration was the worst since Woodrow Wilson in terms of targeting what it perceived to be its political enemies (including through the campaign…). I’d call it Nixonian, except Nixon didn’t get away with it.”

A Classic SLAPP

Popehat shows how this works. As he says, Colorado doesn’t have an anti-SLAPP law, but it may just get dismissed.

By the way, while I don’t generally discuss my own case, briefly, because he’s a public figure, if it ever actually gets to trial, he has to show that I acted “with malice.” Legally, what this means is that I had a “reckless disregard for the truth,” which means that I either knew what I was writing wasn’t true, or I didn’t care whether or not it was.

Whatever else you might think of him, you know who recklessly disregards the truth every day? Donald J. Trump. Though Barack Obama did it a lot, too, to cram ObamaCare down our throats (among many other things).

The American “Elite”

Are they really elite?


Elitism sometimes seems predicated on being branded with the proper degrees. But when universities embrace a therapeutic curriculum and politically correct indoctrination, how can a costly university degree guarantee knowledge or inductive thinking?

Is elitism defined by an array of brilliant and proven theories?

Not really. University-sired identity politics has not led to racial and ethnic harmony.

Is there free speech or diversity of thought on campuses? Did progressive government save the inner cities? Are elites at least better-spoken and more knowledgeable than the rest of us?

Long before Trump’s monotonous repetition of “tremendous” and “great,” Barack Obama thought “corpsmen” was pronounced “corpse-men,” and that Austrians spoke “Austrian” rather than German.

Not long ago, Representative Hank Johnson (D., Ga.) warned that if Guam became too populated it might just tip over and sink.

They’re just credentialed. Elite people are actually educated, knowledgable and competent.

Trump And The Judge

I’m no Trump fan, but I think all the pearl clutching from the media over his “so-called judge” tweet was ridiculous. So does Jonathan Turley. And as always, it’s particularly ridiculous coming from people who probably had no problem with Obama upbraiding (and in the process lying) the Justices who had honored him with their attendance at the State of the Union over Citizens United.

The Political Assassination Of Michael Flynn

I was no big fan of Flynn, but this sort of thing makes me support Trump, on principle. If they figure out who the leakers were, they should bring the hammer down on them. It’s a very frightening precedent.

[Wednesday-morning update]

What happened here is deeply worrying:

The whole episode is evidence of the precipitous and ongoing collapse of America’s democratic institutions — not a sign of their resiliency. Flynn’s ouster was a soft coup (or political assassination) engineered by anonymous intelligence community bureaucrats. The results might be salutary, but this isn’t the way a liberal democracy is supposed to function.

Unelected intelligence analysts work for the president, not the other way around. Far too many Trump critics appear not to care that these intelligence agents leaked highly sensitive information to the press — mostly because Trump critics are pleased with the result. “Finally,” they say, “someone took a stand to expose collusion between the Russians and a senior aide to the president!” It is indeed important that someone took such a stand. But it matters greatly who that someone is and how they take their stand. Members of the unelected, unaccountable intelligence community are not the right someone, especially when they target a senior aide to the president by leaking anonymously to newspapers the content of classified phone intercepts, where the unverified, unsubstantiated information can inflict politically fatal damage almost instantaneously. . . .

But no matter what Flynn did, it is simply not the role of the deep state to target a man working in one of the political branches of the government by dishing to reporters about information it has gathered clandestinely. It is the role of elected members of Congress to conduct public investigations of alleged wrongdoing by public officials.

What if Congress won’t act? What if both the Senate and the House of Representatives are held by the same party as the president and members of both chambers are reluctant to cross a newly elected head of the executive branch who enjoys overwhelming approval of his party’s voters? In such a situation — our situation — shouldn’t we hope the deep state will rise up to act responsibly to take down a member of the administration who may have broken the law?

The answer is an unequivocal no.

In a liberal democracy, how things happen is often as important as what happens. Procedures matter. So do rules and public accountability.

That hasn’t been the case for eight years. This is just a continuation, likely by the same people.

[Update a while later]

The Empire strikes back:

Welcome to the Deep State, the democracy-sapping embeds at the heart of our democracy who have not taken the expulsion of the Permanent Bipartisan Fusion Party lightly. They realize that the Trump administration poses a mortal threat to their hegemony, and so have enlisted an army of Democrats, some Republicans, the “neverTrumpumpkin” conservative die-hards, leftist thugs, Black Lives Matter and anybody else they can blackmail, browbeat or enlist. They mean business.

Time for a rebel alliance. I hope Pompeo doesn’t have anything that can be used against him. But I fear that these people are morally capable of manufacturing things.

Federal Bureaucrats

…are disconsolate over the repeal of their regulations.


[Update a while later]

This is an amusing argument. And by “amusing,” I mean stupid:

Pizarchik is already working on ideas to write a new version of the stream rule under a future president, though he declined to share any details. He also hinted someone could mount a constitutional challenge to the review act itself, which critics have long argued tramples on the separation of powers.

“I believe there’s a good chance that, in a legal challenge, that a court will overturn Congress’ actions here as an unconstitutional usurpation of the executive branch’s powers,” he said.

So let me get this straight. He thinks that Congress repealing a rule arising from a law passed by Congress, per another law passed by Congress, is a usurpation of the executive branch’s powers? Hokay…

Do you know what’s a real usurpation of separation of powers? Unelected and unaccountable bureaucrats taking over the legislative function through rule making.

[Update a few minutes later]

As a (female) friend told me last week in DC, I bathe in and drink their tears every night:

“It’s almost a sense of dread, as in, what will happen to us,” said Gabrielle Martin, a trial lawyer and 30-year veteran at the Denver office of the Equal Employment Opportunity Commission, where colleagues now share daily, grim predictions about the fate of their jobs under Mr. Trump’s leadership.

“It’s like the movie music when the shark is coming,” Ms. Martin said, referring to “Jaws,” the 1975 thriller. “People are just wary — is the shark going to come up out of the water?”

Very soon, I hope.