Nominate Judge Merrick Garland as the new FBI Director. This is the brilliant idea of Utah Senator Mike Lee. His suggestion, if implemented, would solve a multitude of President Trump’s problems. More importantly, it would provide the country with a full, independent and conclusive judgment regarding the entire “Russia” matter once and for all. It eliminates the silly comparisons to Watergate. And it diffuses any notion of a “constitutional crisis.” But is President Trump up to the challenge? Continue reading “Nominate Judge Merrick Garland as FBI Director – A Brilliant Political Move”
President Trump’s decision to fire FBI Director Comey has rightly led to questions about his motivations and judgment. We discuss that elsewhere. But President Obama’s failure to fire Director Comey is troubling, albeit for different reasons. Why didn’t President Obama fire Comey immediately after Comey’s initial conclusion of the Hillary investigation? Obama’s judgment was also poor. But we believe his primary motivation was something altogether different. It was just politics, pure and simple. And it’s yet another example of a President placing politics above the needs of the country. Continue reading “President Obama’s Failure to Fire FBI Director Comey – It Was All Politics”
Michele Obama once said “when they go low we go high.” But not the Maryland Black Caucus (MBC). For them, “when they go low we get high [just kidding] – it is racism!” In a pathetic example of playing the race card, the Maryland Black Caucus screamed foul when there were no awards of Maryland’s 15 marijuana grower licenses to African-Americans. But it all falls on deaf ears in a Maryland legislature lambasted by the MBC with overtures of claimed corruption. And outward – and ill-founded – claims of racism. Continue reading “Deaf Ears to Maryland Black Caucus on Marijuana – And Rightly So”
House Intelligence Chairman Devin Nunes was irresponsible and wrong. Ranking House Intelligence Committee Democrat Adam Schiff was irresponsible and wrong. The House Intelligence Committee investigation into possible Russian interference in the presidential election has become a farce. Loyalty to the Committee has been discarded. Dedication to truth-finding has been jettisoned. Congressmen Nunes and Schiff deserve each other. Will the grown-ups ever enter the room?
Nunes’ Duty – Kiss It Goodbye
No investigation can succeed where “partial disclosures” are made while the investigation is ongoing. Congressman Schiff is correct. Chairman Nunes owed an absolute duty of loyalty to his committee’s investigation and to preserving the sanctity of that investigation. He was foolish in foregoing the advice of his fellow Republican committee members who urged him to consult with Democrats before going public. An exercise of terrible judgment.
Shame on Nunes for running to his party leader, while ignoring his committee mates, with “breaking news” of conversations legally obtained possibly involving the President and/or his certain of his associates. We thought Nunes worked for the American people, not CNN or Fox News. No, Congressman Nunes, you did not “have a duty” to tell the President that intelligence reports with his name in them exist. You have an investigation to conduct. And you are its leader.
Even if the Congressman had discovered that President Obama had ordered a wiretap of President Trump, Nunes had an absolute obligation to share that information with his committee members, including the ranking Democrat, before he scrambled off to meet with the President. Surely the matter of paramount importance in that instance is the potential criminal conduct of Mr. Obama. Mr. Trump’s need-to-know of transgressions is clearly secondary. Mr. Nunes, it appears, has no sense of priorities or propriety.
Schiff’s Duty – Kiss It Goodbye, Too
Enter Congressman Schiff. He is equally guilty of violating the sanctity of an on-going intelligence investigation. Mr. Schiff succumbed to political theater and became an active participant. He acted with impropriety and irresponsibly. Mr. Schiff apparently concluded that because the Republican Committee chair acted foolishly and recklessly, he must do the same. Nunes and Schiff, it turns out, wear the same jacket.
So Congressman Schiff immediately held his own press conference. Oh sure, he chided Nunes for his lack of professionalism:
The Chairman will need to decide whether he is the chairman of an independent investigation into conduct . . . or he is going to act as a surrogate of the White House, because he cannot do both. Unfortunately I think the actions of today throw great doubt in the ability of both the Chairman and the Committee to conduct the investigation the way it ought to be conducted.
Well said, Congressman. But talk is cheap, and we suppose none of those fine words apply to you. Having thrown down the gauntlet to his compadre Mr. Nunes, Mr. Schiff raced over to Meet the Press to disclose this:
I don’t think it was deliberate on [former Director of National Intelligence James Clapper’s] part, but all I can tell you is reviewing the evidence that I have, I don’t think you can conclude that [there was no evidence of collusion between the Trump team and Russia] at all, far from it.
When asked whether there was circumstantial evidence suggesting collusion, Mr. Schiff said:
Actually, no . . . I can tell you that the case is more than that. And I can’t go into the particulars, but there is more than circumstantial evidence now . . . I will say that there is evidence that is not circumstantial, and is very much worthy of investigation.
Yes, Mr. Schiff, we agree. It is fine for you to make disclosures. It’s admirable for you to play the political game. Please tell us, again and again when you can score a few points, your opinion regarding the quality of evidence received during an on-going investigation. Take it upon yourself, as well, to speak for the Committee without consulting them. Who needs an internal Committee debate or a report when you can just fill us in as you see fit. You are free to disclose that there is evidence that is more than “circumstantial.” Perhaps you’ll let us know the source of that evidence. Or, even, if it turns out to be unreliable – we assume you’ll put on those track shoes and race over to Meet the Press then, too, right?
Nunes and Schiff – A Perfect Match
Yup, Mr. Schiff, we agree. We think your actions also “throw great doubt in the ability of . . . the Committee to conduct the investigation the way it ought to be conducted.” Bet you didn’t confer with your Republican committee mates before you made those comments to Meet the Press.
You are right about Chairman Nunes. But a good sauce for the goose is a good sauce for the gander, too.
Congressmen Nunes and Schiff – shame on you both for your conduct. You deserve each other.
The Florida Constitution provides that “[t]he legislative power of the state shall be vested in a legislature of the State of Florida.” So, does a Florida state attorney have the power to change that law? Florida prosecutor Aramis Ayala apparently thinks so. She decided that she will never seek the death penalty in any capital murder case in Osceoloa and Orange counties, where she serves.
This is not a debate about the death penalty. We assume Ms. Ayala has sincere reasons why the death penalty should never be imposed. She may find the death penalty repugnant for a variety of sound reasons. And she is certainly entitled to a forum to express her beliefs and to debate them.
Ms. Ayala holds only a public prosecutorial office in Florida. She serves in the executive branch of government. She has specific duties and responsibilities as a consequence of her office. Ms. Ayala has taken an oath as a Florida prosecutor.
But the question is simply this: does the state attorney in Osceola and Orange counties have the right or power to substitute her honest beliefs for those of the Florida legislature? Can she unilaterally change the law? Or is lawmaking the sole province of the Florida legislature? Florida Governor Scott removed her from the case we describe below. And rightly so.
The Allegations in the Murder of Police Lieutenant Debra Clayton
In December, 2016 Markeith Loyd allegedly murdered Sade Dixon, his pregnant girlfriend, in front of her family members. On January 9, 2017, Orlando Police Lieutenant Debra Clayton stopped at a Wal-Mart to buy a few items while on duty. On her way back to her patrol car another shopper approached her and told her that she had seen person matching Loyd’s description at a check-out counter. Lieutenant Clayton called in the sighting and identified that person as Loyd. While Clayton was on the radio with the dispatcher, three gunshots rang out. The call then went dead.
A surveillance camera captured the entire scene. Lieutenant Clayton approached Loyd outside the Wal-Mart. Clayton pulled out her weapon. Loyd ran and she chased. Loyd, wearing a bulletproof vest, circled around her while pulling a handgun from his waistband. He took cover behind a concrete pillar. Clayton drew her gun and headed toward the parking lot. But she was unable to reach cover before Loyd fired three shots. One shot hit her in the hip and she fell to the ground. She rolled onto her back. Loyd, instead of leaving the scene, then moved to Clayton, stood over her and fired five more shots as Clayton returned fire. One of Loyd’s shots fatally struck Clayton in the neck.
A second police officer followed Loyd as he fled. The officer tracked Loyd to an apartment complex. There, Loyd fired at the second officer, striking his vehicle but missing the officer. Loyd escaped, and was captured days later.
As described by Orlando Police Chief John Mina, “I have seen the video of Markeith Loyd executing Lt. Debra Clayton while she lay defenseless on the ground. She was given no chance to live.”
The Florida Criminal Statutes
These statutes are straightforward. They are unambiguous. The video in Lt. Clayton’s murder (which we have not seen) apparently depicts the brutal, execution-style murder of a police officer. Loyd fled, took cover and fired at Clayton. After wounding her, he approached her while she lay on the ground, firing at he five more times until killing her. It is not a stretch to suggest that these facts support a request to a jury for imposition of the death penalty.
Prosecutorial Discretion or Abrogation of Duty? A Florida Prosecutor Run Amok
Ms. Ayala decided that she would not pursue the death penalty in the murder of Lieutenant Clayton. Whether we agree with that decision or not within the confines of the case, that’s certainly within her prosecutorial discretion.
But Ms. Ayala went well beyond the specific facts of the case of Markeith Loyd. The Florida prosecutor also announced that she would not pursue the death penalty in any other case. “I have determined that [using my prosecutorial discretion in death penalty cases] . . . is not in the best interests of this community or the best interest of justice.” As a consequence, she indicated that she intended to file a notice to withdraw the intent to seek the death penalty in all other cases within her jurisdiction that have not yet gone to trial.
Ms. Ayala believes that capital punishment is a failed policy. She believes application of the death penalty is inconsistent. She concluded that the protracted length of the appeals process deprives the victim’s families of closure. “It’s become clear that pursuing death-penalty cases is not the best interest of victims’ families or justice.”
Ms. Ayala’s policy conclusion is that “Florida’s death penalty has been the cause of considerable legal chaos, uncertainty and turmoil.” And it is true that aspects of Florida’s death penalty law, and its application, have created legal issues, even to the point of involving the U.S. Supreme Court. However, any changes to the Florida law are the sole prerogative of the legislature, subject to review by the courts.
A Florida Prosecutor Making Policy Decisions – Invading the Province of the Legislature
We listened to Ms. Ayala’s entire oral explanation behind her decision. You can hear it here. She has made wholesale policy judgments. She has determined, after thorough reflection, to eliminate the Florida death penalty law in her counties of jurisdiction.
The fact that Ms. Ayala made a detailed policy analysis to reach her conclusion of widespread application makes clear that she is not entitled to make a detailed policy analysis in the first instance. Policy decisions are the sole responsibility of the representatives of the people of the State of Florida. The Florida Constitution granted that power to Florida’s legislature. Not to lawyers employed merely to enforce Florida’s laws. Indeed,
the primary role of the State Attorney is to represent the State of Florida in the criminal court system. The State Attorney reviews criminal investigations conducted by law enforcement, decides if criminal charges are necessary and then presents the cases in criminal court.
Florida’s laws are detailed and specific regarding the powers of a state attorney.3 The legislature did not grant any policy-making powers to a state attorney.
Under Florida law the power to create a death penalty law resides with the legislature. And the power to remove that law rests with the legislature.
Ms. Ayala had a simple choice as a Florida prosecutor. Enforce the laws of the State of Florida. If her conscience prevents it, then resign. But she chose to arrogate powers that belong to the people’s representatives. Florida’s governor was right to remove her from the Loyd case. If she fails to pursue the death penalty in other appropriate cases, she should be replaced.
The Supreme Court confirmation process is hopelessly politicized. Should we confirm Gorsuch? Democrats and Republicans have jointly destroyed legitimate consideration of any nominee. They ignore what once were the traditional criteria for confirmation. Labeling and mischaracterization rule the day. A nominee from a President of one party is anathema to the other party. The opposition party, in turn, battles to the death to defeat the nominee. And they portray the nominee, whoever he might be, as a villain. He is either an enemy of the people or an enemy of free markets. A person who won’t side with “the little guy”, or one who eviscerates the Second Amendment.
The founders intended a Senate as a deliberative body. Their Senate would attract thoughtful, educated people not easily swayed by the less well-informed electorate or the temporary issue of the day. It would be positioned to dispassionately reflect, insulated from emotion. The Senate would advise on the character, capabilities and qualities of a Supreme Court nominee.
It was once and for long that way. But that is now lost, the inevitable consequence of a deep polarization. Of a fundamental vilification of our countrymen. And of a determination to put us all at each other throats for fleeting political advantage, until the next round, when our opponent surely then prevails. And then once again.
For those among us who are older, who remember a time when political difference yielded to political compromise, there is a nagging and growing despair that our younger generation learn only of hostility. Their experience is devoid of a common purpose, of a sense of community and of a common endeavor. They learn to despair of their political opposites. They find purpose only in winning for themselves, and in defeating their opponents. And they believe deeply and exclusively in faction. And to shout down their countrymen with whom they disagree, until their countrymen are silenced completely.
How Can the Senate Confirm Gorsuch?
If the American people want a Supreme Court justice who is human, humane, thoughtful and compassionate, then consider the thoughts and words of the current nominee. Should we confirm Gorsuch?
Here is a man who could have easily been nominated by a 1960’s Democrat. And if he were, most surely today’s Republicans would, to a man (and woman), line up against him. The American people are entitled to more than the simple default that a nominee of a President from one party is unacceptable to each and every Senator of the other party. And must be defeated, and if necessary destroyed.
So here are the words of nominee Neil Gorsuch. Do the philosophies embodied in these words allow any Democratic Senators to confirm Gorusch? Are not these thoughts the prerequisite to confirm Gorsuch, or anyone?
Belief in the Rule of Law
[J]udges taught me about the rule of law and the importance of an independent judiciary, how hard our forebearers worked to win these things, how easy they are to lose, and how every generation must either take its turn carrying the baton or watch it fall.
Belief in Applying the Law Impartially
[T]hese days we sometimes hear judges cynically described as politicians in robes. Seeking to enforce their own politics rather than striving to apply the law impartially. But I just don’t think that’s what a life in the law is about.
Belief in Following the Law, No Matter Where it Leads
As a judge now for more than a decade, I have watched my colleagues spend long days worrying over cases. Sometimes the answers we reach aren’t ones we would personally prefer. Sometimes the answers follow us home and keep us up at night. But the answers we reach are always the ones we believe the law requires. For all its imperfections, the rule of law in this nation truly is a wonder — and it is no wonder that it is the envy of the world.
Supreme Court Justices’ Disagreements Are About The Law, Not About Political Opinions
Once in a while, of course, we judges do disagree. But our disagreements are never about politics — only the law’s demands. Let me offer an example. The first case I wrote as a judge to reach the Supreme Court divided 5 to 4. The Court affirmed my judgment with the support of Justices Thomas and Sotomayor — while Justices Stevens and Scalia dissented. Now that’s a lineup some might think unusual. But actually it’s exactly the sort of thing that happens — quietly, day in and day out — in the Supreme Court and in courts across our country. I wonder if people realize that Justices Thomas and Sotomayor agree about 60% of the time, or that Justices Scalia and Breyer agreed even more often than that. All in the toughest cases in our whole legal system. . . .
Belief In Mutual Respect and Consideration of Different Viewpoints
[I]n the West we listen to one another respectfully, we tolerate and cherish different points of view, and we seek consensus whenever we can. My law clerks tell me that 97% of the 2,700 cases I’ve decided were decided unanimously. And that I have been in the majority 99% of the time.
Belief That Courts Apply the Laws as Made by the Congress – Courts Should Not Be the Lawgivers
When I put on the robe, I am also reminded that under our Constitution, it is for this body, the people’s representatives, to make new laws. For the executive to ensure those laws are faithfully enforced. And for neutral and independent judges to apply the law in the people’s disputes. If judges were just secret legislators, declaring not what the law is but what they would like it to be, the very idea of a government by the people and for the people would be at risk. And those who came to court would live in fear, never sure exactly what governs them except the judge’s will. As Alexander Hamilton explained, “liberty can have nothing to fear from” judges who apply the law, but liberty “ha[s] every thing to fear” if judges try to legislate too.
Belief in Applying the Law to The Facts Presented
[M]y decisions have never reflected a judgment about the people before me — only my best judgment about the law and facts at issue in each particular case. For the truth is, a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.
Confirm Gorsuch? – A Life in the Service of the Law
Written on [a judge’s] tombstone over 200 years ago was this description:
As a lawyer, he was faithful and able; as a judge, patient, impartial, and decisive;
In private life, he was affectionate and mild; in public life, he was dignified and firm.
Party feuds were allayed by the correctness of his conduct; calumny was silenced by the weight of his virtues; and rancor softened by the amenity of his manners.
These words stick with me. I keep them on my desk. They serve for me as a daily reminder of the law’s integrity, that a useful life can be led in its service, of the hard work it takes, and an encouragement to good habits when I fail and falter. At the end of it all, I could hope for nothing more than to be described as he was. If confirmed, I pledge that I will do everything in my power to be that man.
Should we confirm Gorsuch?
So what’s in the Republican healthcare bill? It’s time for the Washington hypocrites to take another victory lap. None other than House Minority Leader Nancy Pelosi gets the spotlight on this one. And she didn’t disappoint. If you need another example of why Americans hold their political parties in contempt, then look no further than the leadership provided by Ms. Pelosi. We guess they think we are all fools. Or will simply march behind their pied pipes to whatever tunes they choose to play.
Let’s rewind just a little bit. The time was 2010. The Democrats were in control of both the House and the Senate. Nancy Pelosi was the Speaker of the House. The Republicans had no say in the little matter known as health care reform. And so the House passed the Senate’s Obamacare bill in March, 2010. Continue reading “What’s In the Republican Healthcare Bill? Pelosi Says Public Must Know – This Time!”
It looks like there was no Washington swamp draining during the Obama presidency. We now know that during his administration John Podesta’s brother, Tony, lobbied on behalf of Russia’s largest bank, Sberbank. John Podesta, of course, was the national chairman for Hillary Clinton’s presidential campaign. He had also previously been a special counselor to President Obama. Tony Podesta’s goal: removal of sanctions imposed by President Obama on Sberbank. Tony added David Adams to his Sberbank team. Mr. Adams, fortuitously, served as Hillary’s assistant secretary of state for congressional affairs.
According to reports, the lobbying effort focused on the executive branch and the Congress. Tony Podesta’s firm arranged at least two meetings between Sberbank and officials from the State Department. Looks like it was a good idea to have David Adams involved. Easier to get into the State Department, we suppose.
So let’s try to understand this one. Democrats strongly infer collusion existed between the Trump campaign and the Russian government to somehow throw the election to Donald Trump. At the same time, a powerful Democratic lobbying firm, with direct relationships into the White House, arranges meetings on behalf of a major Russian bank to eliminate sanctions.
Washington Swamps and Washington Hypocrisy
Does any of this stink? Are we the only ones bothered by any of this? If we ever needed evidence of the Washington Swamp, this is certainly it. When will the swamp draining begin?
Politics as usual in Washington. And a little hypocrisy to boot. We guess it’s OK for prominent Democrats to lobby on behalf of a Russian bank that is subject to sanctions. But it’s not OK for the new President, or any of his associates, to converse with the Russian ambassador to the United States. Maybe this makes sense in some alternative universe. Or maybe it just makes sense in Washington, D.C.
McCarthyism is not dead. Now it’s called the Putin-scare. Republicans beware. If any of you spoke with a representative of Putin’s government at any time during or since the presidential election cycle, you’d better tell us now. We will find out anyway. And in either case, we know you and Putin are coordinating efforts to undermine our government. You’re a Putin lackey even if you just thought about meeting with anyone who was ever associated with the Russian government. Because we’ll find that out too. If you can just point to Russia on the map, well that’s enough; turn yourself in. Anyone wearing red – we know what that means. Reds fans, and we don’t mean from Cincinnati, will all wind up on the gallows. We’ll be photographing anyone attending Red Sox opening day, too.
We’re gonna convene hearings. Lots and lots of hearings. And it’s going to go on for at least the next four years; maybe eight if that red party is still in the White House. We’ll be on every corner and in every alley. You know we are recording every conversation everywhere in the country. We’ve got a program for that too.
Republicans beware! We’re better at this than you think. We’ve gotten rid of Flynn. Boy was that easy! We’ve got Sessions out of the way. All we had to do there was check his appointments log. That was easy too. That Sessions, he’s not too bright. Imagine, a brief conversation with the Russian ambassador after leaving a podium. Yes, perhaps there were a few other ambassadors around, and Sessions may have spoken with them too. But that doesn’t matter! He spoke to that Russian in public, of all things. God only know where this trail leads!
Yes, we know that the Washington Post is telling us that this Russian ambassador “shows up everywhere and tries to talk to everyone.” We know that’s what diplomats do. But this guys a spy! Why the heck would the Post tell us that this Ambassador Kislyak “is not considered especially close to Russian President Vladimir Putin”? That’s really not helpful, you know. The Post wouldn’t even stop there. They brought up the old “current and former U.S. officials” telling us stuff, that “[f]or Kislyak to have sought contacts with . . . Flynn and . . . Sessions . . .should come as no surprise.” Memo to the Post – please stop printing that kind of stuff!
And it would be better if ex-Obama people like Michael McFaul wouldn’t make comments like this: “[The Russian Ambassador] doesn’t get as much credit as he should, in my view, for being savvy about developing relationships with people all over [Washington].” Geez, McFaul was Obama’s guy in Russia. Somebody better tell him, no more interviews until we’re finished.
McFaul, pay attention. We need more guys out there like Obama’s ex-CIA director John McLaughlin. He got the memo. Take a listen to his comment that “it does strain credibility” that Sessions could’ve forgotten meeting with Kislyak. After all, Kislyak is “a hard guy to forget if you’ve met him.” Now that’s more like it!
Republicans beware! Better fess up now, you Russian sympathizers. Turn in your Senate keys. Turn in your Congressional keys. And most certainly turn in your White House keys. We’re gonna get all of you. And don’t forget. We are everywhere. We’re trolling every website and every blog . . .
Should presidential candidates be required to disclose their federal income tax returns? A recent push comes from Republican Senator Lindsey Graham, a critic of President Trump, with the latest Congressional effort to require candidates to do just that. But is forced disclosure of candidates tax returns a good idea? On balance, we think not. Tax returns are poorly equipped to inform the public regarding legitimate issues involving a candidate’s qualifications for the presidency. Furthermore, the informative value of tax return data is outweighed by its inflammatory impact. We explain. Continue reading “Presidential Candidates Tax Returns: Is Forced Disclosure A Good Idea?”