RUTHFULLY YOURS

Everybody wants to get in on the act.

We’re talking about another day, another cause célèbre for social justice warriors. The SJWs must really believe in idle hands being the devil’s playground — at least, they would if they believed in the devil.

Never mind. The SJWs are hard up for promoting causes that truly annoy us so they simply recycled arguments they used to smash Confederate monuments and are now using them to smash those who offended Native Americans.

Believe me, it’s a very long list.

Presidents, generals, icons like Daniel Boone, and the occasional bald settler who annoyed tribesmen by denying them a suitable trophy scalp to pin to their lodgepole.

I don’t think there are any monuments to that last entry, but for the rest, it’s a target-rich environment.

Los Angeles Times:

No other city has taken down a monument to a president for his misdeeds. But Arcata is poised to do just that. The target is an 8½-foot bronze likeness of William McKinley, who was president at the turn of the last century and stands accused of directing the slaughter of Native peoples in the U.S. and abroad.

“Put a rope around its neck and pull it down,” Chris Peters shouted at a recent rally held at the statue, which has adorned the central square for more than a century.

Peters, who heads the Arcata-based Seventh Generation Fund for Indigenous People, called McKinley a proponent of “settler colonialism” that “savaged, raped and killed.”

A presidential statue would be the most significant casualty in an emerging movement to remove monuments honoring people who helped lead what Native groups describe as a centuries-long war against their very existence.

The push follows the rapid fall of Confederate memorials across the South in a victory for activists who view them as celebrating slavery. In the nearly eight months since white supremacists marched in central Virginia to protest the removal of a Robert E. Lee statue, cities across the country have yanked dozens of Confederate monuments. Black politicians and activists have been among the strongest supporters of the removals.

A response to Orin Kerr

Orin Kerr is an insightful legal analyst, so when we are in disagreement I take his criticism seriously. Respectfully, however, his Lawfare critique of a recent column in which I took issue with Special Counsel Robert Mueller’s pleading practices is not his best work.

To recap my argument, Mueller’s tactic of charging sensational offenses and pleading them down to comparatively trivial crimes flouts guidelines that are prescribed in the U.S. Attorney’s Manual and that are followed by responsible U.S. attorneys’ offices. Kerr objects, contending that a provision in the manual that I did not discuss indicates there is more leeway in the guidelines than I let on.

I think he is wrong on this narrow point because the guideline he cites, which applies to non-prosecution agreements for potentially culpable witnesses when time is of the essence, is not pertinent to the situation I was discussing: viz., the plea deal of Richard Gates, who faced two indictments alleging financial-fraud felonies involving over $100 million in the aggregate, but was permitted to plead guilty to minor charges. Before we come to that, though, some underbrush needs clearing.

First, Kerr implies that I see the manual guidelines as legally binding. I don’t, and never have — not in 20 years living under them as a prosecutor, nor in the succeeding 15 years as a commentator. The thrust of my argument is that Mueller is not upholding critical Justice Department “standards” and “policy” (the words used in the column) that are expressed in the guidelines. If the guidelines were binding, there would be little point in arguing policy, as I have done; I would call for court enforcement. But the guidelines reflect internal DOJ standards; there is no judicial remedy for deviations.

In a different recent column, I highlighted the manual’s opening passages, which unambiguously declare that the guidelines are just that, guidelines. (See Section 1-1.100.) How strictly they are honored is up to federal prosecutors, their supervisors, and Justice Department leadership. In my experience, the manual’s guidelines are taken quite seriously — they certainly were in the U.S. attorney’s office for the Southern District of New York (SDNY), where I worked. But Mueller is effectively unsupervised, so no one is going to force him to adhere to them. Kerr’s description of my claim that Mueller is “breaking the rules” suggests that I’ve accused the special counsel of violating the law. No, I’ve accused him of abusing his discretion.

That this is not actionable does not make it right.

Second, while the guidelines obviously aim to ensure equal and ethical enforcement of federal law across the country, just as significant is their goal of promoting the most effective investigations and prosecutions possible under whatever circumstances prevail. My criticism is directed to this latter objective, which I think Kerr fails to give its due.

A defendant should be required to plead guilty to “the most serious readily provable” offense charged, as dictated by the guideline I cited (U.S. Attorneys Manual, Section 9-27.430), which is directly applicable to plea agreements. Kerr grouses that I don’t address the purportedly complicating factor of cooperation in discussing this provision (though he acknowledges that I do raise it elsewhere — we’ll come to that). But there is no need to address cooperation as if it complicated matters, because it doesn’t: The “most serious readily provable” standard applies to plea agreements regardless of whether cooperation is in the mix.

Requiring such a guilty plea not only ensures that the defendant is held appropriately accountable and is not given favorable treatment in comparison to others similarly situated; a plea to “the most serious readily provable charge” also makes the defendant a more compelling cooperating witness. By contrast, failing to require a plea to the most serious offense degrades the defendant’s testimony, which is usually offered to prove against other defendants the same serious offense on which the cooperating defendant has been given a pass.

A concrete example makes the point. A defendant who has committed bank-fraud conspiracy and pleads guilty to bank-fraud conspiracy is an effective witness — his admission of guilt goes a long way toward proving the existence of the scheme and makes it more likely that conspirators he implicates will be convicted. This helps the prosecution. On the other hand, if the prosecutor lets the defendant plead guilty to a minor (non-bank-fraud) conspiracy to induce his testimony against other bank-fraud conspirators, it signals to the jury that the bank-fraud conspiracy is not as serious as the indictment suggests; it opens the door to defense claims that the cooperator was given a major break to buy his testimony and exaggerate the culpability of the other conspirators. This hurts the prosecution.

I am not criticizing Mueller because I’m a contrarian who eschews special-counsel appointments (though I plead guilty to that). Regardless of my take on Mueller’s appointment, if Richard Gates committed $100 million in financial fraud, I want to see him commensurately punished for it. If Paul Manafort committed these same egregious crimes, I want to see Mueller effectively prosecute him. This should involve the main cooperating witness, Gates, pleading guilty to the most serious readily provable charge against both himself and Manafort.

That is what would have been required, at a minimum, in the U.S. attorney’s office where I worked. More likely, an SDNY prosecutor would have insisted that Gates plead guilty to all of the offenses that he and Manafort were indicted for committing jointly. This prudent practice was the standard during my years in the office, and I am pleased to say that it continued in the years after I left. (See, e.g., Byron York’s recent Washington Examiner column in which he quotes former SDNY U.S. attorney Preet Bharara: “When we had evidence against somebody and wanted them to flip, we made them plead guilty to every bad act that they had ever done, especially if we were later going to be alleging other people had engaged in that activity as well.”)

The jury that acquitted Noor Salman of aiding and abetting her husband’s slaughter at the Pulse nightclub believed she was aware of what her husband was planning, but based on the detailed jury instructions and the nature of the evidence they were presented, they had no choice but to deliver a “not guilty” verdict. We know this now because the Orlando Sentinel received a statement from the foreman, which is presented in its entirety below. What leaped out at me was a single sentence criticizing the FBI, that comes 294 words into the statement.

I wish that the FBI had recorded their interviews with Ms. Salman as there were several significant inconsistencies with the written summaries of her statements.

Many readers may recall from the FBI’s handling of the Hillary Clinton email scandal that no recordings were made of the FBI’s interview with her (or with any other witnesses, for that matter). This is because the only record of subject interviews that the FBI makes is Form 302s, notes prepared by an agent.

Readers may also recall that according to two investigative reporters, Sara Carter and Mike Cernovich, fired FBI deputy director Andrew McCabe has been accused of asking FBI agents to alter 302 reports. It is not clear if this accusation was part of the inspector general’s report that led to McCabe’s firing, nor is it clear that it actually happened.

What matters to me is the ridiculous policy of not recording the actual interviews, and instead relying on the integrity, skill, and diligence of FBI agents in faithfully recording everything of any relevance that took place during an interview. Sometimes, the pacing and tone of voice of a subject may have great relevance, for example, and written notes cannot possibly fully reflect the reality of the situation.

Relying on Form 302s made sense only in the era when recording an interview was impossible or difficult owing to technology limits. But now that a pocket cell phone can record interviews almost effortlessly, there is no justification of ceding to the FBI the task of writing up what an agent thinks (or wishes) was said.

Civil libertarian icon Harvey Silverglate is scathing about this practice:

Instead of electronically recording its interviews and interrogations, the FBI’s policy is to rely on agents’ typewritten “section 302 reports,” crafted to reflect the supposed substance of the exchange. At such sessions, one agent takes notes by hand while the second agent – in the traditional two-agent FBI interviewing team – conducts the interview/interrogation. Tape recordings are almost never done because such recordation is – believe it or not – against formal written FBI policy. Therefore, the 302 report becomes the sole arbiter of what was, and was not, said; moreover, as we will see below, any interviewee who contests its accuracy risks prosecution. Hence, a potential witness’ script is written – and not necessarily by the witness himself – the moment he opens his mouth in the presence of an agent.

President Donald Trump is facing a revolt from his base for having signed the bloated omnibus spending bill that torpedoes his “drain the swamp” pledges. But the president now has an opportunity to achieve a small measure of redemption: he should offer loud and unequivocal support to Interior Secretary Ryan Zinke, who is being hammered for reportedly having rejected identity politics in favor of meritocracy.

Zinke is facing a storm of media criticism from liberals for allegedly saying that diversity is “not important,” though his office denies that he said this. The same sources that reported Zinke’s comments say that he followed up by stating that what he cared about was excellence—and that by hiring the best people, he would in fact put together the most diverse group anyone has ever had. This second statement is a cowardly concession (as is his denial of his initial diversity observation, assuming that he made that initial statement). Sometimes meritocracy will yield diversity; sometimes it won’t. The point is that it doesn’t matter. Diversity should not be an end in itself; excellence is the goal.

Rejecting the primacy of diversity constitutes a head-on assault on the received wisdom of Washington and elite American culture. Gender and racial quotas have been the order of business for the last three decades. The #MeToo movement has only intensified pressures on public and private organizations to hire based on sex and skin color. The result: wasted resources, the sidelining of merit, and ever more virulent and irrational identity politics. The rule of the diversity regime is that you’re required to be fanatically obsessed with race and gender until you aren’t—because at that unpredictable moment, whenever it comes, noticing race and sex becomes racist and sexist.

Removing a few blinders from the Washington Post’s “Outlook.”

On March 18, 2018, the Washington Post Outlook section categorized KGB influence operations and my book, American Betrayal, both as “myth.” In response, I sent in the following essay, which Outlook has turned down.

I am the author of that unnamed “book written in 2013” whose research and argumentation, anchored in nearly 1,000 endnotes, were labeled a “myth” by Mark Kramer (“Five Myths about Espionage,” Outlook, March 18, 2018).

Here’s how Kramer made his case in “Myth No. 5”:

A surprisingly common misconception about spies is that they set out to change policy in the countries where they operate. A book published in 2013, for example, alleged that Stalin’s spies in the 1940s had effectively “occupied” the United States and guided the policies of the Roosevelt administration.

Since Kramer forgot to mention it, the title of that “book published in 2013” is: American Betrayal: The Secret Assault on Our Nation’s Character (St. Martin’s Press). On page 68, I set out to describe the impact of the secret honeycombing of the halls of power and influence in New Deal/wartime Washington, D.C. by an intelligence army of covert agents and communists under Kremlin discipline — more than 500 have now been identified — and came up with “for all intents and purposes occupied.”

A goodly number of these secret agents, of whom Alger Hiss is only the most famous, reached senior policy-making positions in the FDR administration. In Kramer’s telling, however, all they really did as they inched closer and closer to the Secretary of the Treasury or State or the President was filch classified documents. Questions concerning whether/how these secret agents and ideological communists influenced the direction of U.S. policy- and even war-making to the Kremlin’s advantage — questions my book explores — are to be dismissed as what Kramer describes as a “surprisingly common misperception.”

Given that Kramer wrote an op-ed last year about the long history of “Moscow’s active measures to influence U.S. politics and undermine U.S. foreign policy,” perhaps it is his own recent Outlook statement that is surprising; however, it is no myth.

That there exist “spies” — better known as agents of influence, for example — who seek to “change,” or, more realistically, influence policy-making and other activities of rival nations is a fact. It is an especially salient fact in the case of the fronts, networks and sophisticated campaigns of deception directed by the KGB, and overseen, at least in the post-Stalin era, as renowned Soviet dissident Vladimir Bukovsky reminds us, by the Central Committee of the Communist Party in Moscow. Lest there be any confusion, this has been going on for one hundred years — not only in “the 1940s.” My own book aside, I am afraid that when Mark Kramer, as director of Cold War Studies at Harvard, dismisses all of this and more as “myth,” it is akin to the Army Corps of Engineers dismissing as “myth” the presence of water in the Mississippi River.

The Beltway’s sober and judicious foreign-policy establishment laments Donald Trump’s purported dismantling of the postwar order. They apparently take the president’s words as deeds and their own innate dislike of him as disinterested analysis.

But is the world really imploding after 70 years of supposed “calm”? (Disregarding the Korean and Vietnam wars; Chinese, Cambodian, Rwandan, and Balkan genocides; at least six Middle East conflicts; 9/11; a dozen U.S. interventions; a nuclear Pakistan and North Korea; the Cuban and Berlin nuclear standoffs; 20 years of Palestinian terrorism followed by 20 years of radical Islamic successors; a European Union financial and border meltdown; the Russian absorption of eastern Ukraine and Crimea, to name just a few “hot spots.”)

In other words, Trump did not inherit an especially stable world. So has any elite expert over the past two years attempted to make sense of how some positive and much-needed change abroad was guided by Trump, someone without political and military experience and with a flawed character—and how and why that sometimes happens in history?

Correction, Not Chaos
In truth, after 2016, the United States is increasing its financial commitments to NATO. Several European members of the alliances may finally be addressing their prior unmet obligations and increasing defense spending.

The United Nations at least understands from Ambassador Nikki Haley that the United States will call out, rather than aid and abet, its occasional anti-Semitic lunacy. The president did not arbitrarily cancel the North American Free Trade Agreement. Instead, the agreement is up for renegotiation on terms other than the expectation that the United States will always accept asymmetrical deals as part of its required role as the continent’s superpower.

The world itself is not in chaos as alleged. It seems a far safer place than it was between 2009 and 2016. ISIS is no longer a viable threat, promising to establish a new caliphate, in between beheading, burning alive, and drowning the innocent on video.

Plenty of Republicans remain bitter that their party passed that bloated $1.3 trillion omnibus—almost as bitter as President Trump, who felt pressured to sign it. But this fight doesn’t have to be over.

Across Washington, principled conservatives are noodling with an idea that—if done right—could be a political winner. It’s a chance for Republicans to honor their promises of spending restraint and redeem themselves with a base turned off by the omnibus blowout. It’s an opening for the GOP to highlight the degree to which Democrats used the bill to hold the military hostage to their own domestic boondoggles. And it’s a chance for Mr. Trump to present himself again as an outsider, willing to use unconventional means to change Washington’s spending culture.

It’s called the 1974 Impoundment Act, which allows the president to order the rescission of specific funds, so long as Congress approves those cuts within 45 days. The act hasn’t seen a lot of use in recent decades. Barack Obama never saw a spending bill he didn’t like, and George W. Bush never sent any formal rescission proposals to Congress—likely because he took the position that presidents ought to have a fuller line-item veto power. Many conservatives agree, though Ronald Reagan used rescission where he could and holds the title for most proposals. Even so, the total amount all presidents since 1974 have put forward for rescission ($76 billion) and the amount Congress ultimately approved ($25 billion) remains pathetic.

Republicans could change that. Their control of the White House and both chambers gives them an unusual opportunity to cut big. Under the Impoundment Act, a simple majority is enough to approve presidential rescissions—no filibuster. It’s a chance to take a hacksaw to the $128 billion by which the omnibus exceeded the 2011 domestic-spending caps—everything from carbon-capture technology to pecan producers to the Gateway Tunnel Project to the Environmental Protection Agency.

The political danger here rests in Mr. Trump moving unilaterally, with a rescission package that shames his fellow Republicans in Congress and puts them at greater risk in the midterms. The trick is instead for House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell to request Mr. Trump go the impoundment route, or for the White House and congressional leaders to make a joint announcement.

Which gets to the other trick—getting congressional Republicans to come on board and take credit for spending cuts. The GOP is correct that most of the spending hikes were at Democratic demand, but many Republicans used that as an excuse to stuff in their own pork. Messrs. Ryan’s and McConnell’s job is to explain that, with midterms at stake, the party needs to prove it can do a better job with the federal fisc. CONTINUE AT SITE

It wouldn’t be a normal week in Washington without a Trump Administration personnel melodrama. But this week’s removal of Veterans Affairs Secretary David Shulkin is important on the policy merits, and let’s hope his successor is more amenable to allowing retired service members to make their own health-care choices.

On Thursday Mr. Shulkin took to the New York Times to warn of “political appointees choosing to promote their agendas instead of what’s best for veterans” by supporting “privatization leading to the dismantling of the department’s extensive health care system.” This self-justification exercise will not be remembered as the most graceful exit.

Mr. Shulkin has been on the way out for several weeks, and his euphemisms are about his months of infighting with White House and other Administration officials. The unsubtle innuendo in the press is that Mr. Shulkin was run out by the nefarious Charles and David Koch through a policy group called Concerned Veterans for America.

Yet no one except Mr. Shulkin is talking about “privatization.” Concerned Veterans for America in a white paper has sketched out a plan to restructure the VA and allow it to focus more on the expertise its doctors have developed in, say, post-traumatic stress and prosthetics. The plan includes a premium-support payment so vets could buy discounted private coverage from a menu, much like federal employees do. A current vet who preferred to be treated for diabetes elsewhere would be free to make that choice.

The Commerce Department announced Monday that the 2020 Census will include a question about whether the people being counted are citizens. This seemingly uncontroversial inquiry has sent many activists on the Left into a tailspin as they prophesy discrimination against immigrants, especially those who immigrated here illegally. California announced the state would sue to stop the change.

Everyone should take a deep breath and relax. Questions about citizenship and national origin have been a part of the United States Census for more than a century without any negative effects on the non-citizens it surveys. Of all the questions the government asks on the census, this one — which merely confirms information the government already has or should have — is the least problematic, and is completely in line with the Census Bureau’s historical practices.
It’s Not A New Question

The Constitution requires the federal government to take a census every ten years, but it does not require them to collect very much information. The grant of power is specific, but also contains a degree of flexibility: “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”

For the first five censuses, the government stuck very narrowly to this remit. From 1790 to 1840, they listed only the name of the head of the household and the number of people living there. These numbers were divided by age group, sex, race, and (because of the Constitution’s three-fifths clause) condition of servitude. The slavery question was the only one strictly necessary, since the apportionment of representatives did not vary based on the sex or age ratios within a given congressional district.