RUTHFULLY YOURS

With undiminished esteem for my friend David French’s legal acumen, I confess to being underwhelmed by his defense of the Schiff memo. I am going to explain why, but I first want to apologize for the length of this column, which owes to the fact that David’s observations provide an opportunity to address the political context of the congressional investigation, which I have not done much of. I appreciate David’s kind words about my analysis of the memo, and that his lukewarm approval of Representative Adam Schiff’s handiwork comes with a healthy dose of concern about government misconduct.

I also appreciate that we do not yet know everything we should know, and may never, which makes it impossible to draw definitive conclusions. But that hardly means we cannot draw any conclusions. The Justice Department sharply departed from its practice of providing courts with corroboration of serious allegations, and from its tradition of candor in dealings with the federal courts. It eludes me why it is so hard to acknowledge this just because we are at an information deficit and must navigate through a political maelstrom.

Investigations and Politics

There is no point complaining about the partisanship unavoidably attendant to this controversy. This is not, say, the financial meltdown or the Iraq War — disputed issues that were politicized unnecessarily, if predictably. This is an inherently political dispute: A situation in which the incumbent Democratic administration used its foreign-intelligence-collection authority to monitor the Republican presidential campaign, and did so making significant use of what David charitably calls “opposition research” from the Democratic presidential campaign.

With due respect, this is not a situation in which, out of the blue, “a congressional majority [has made] substantial charges of Department of Justice wrongdoing.” Against the backdrop of its blatant tanking of the criminal investigation against the Democratic presidential nominee, the Democratic administration’s Department of Justice went to the Foreign Intelligence Surveillance Court in the last three weeks of the presidential campaign to seek monitoring of a former adviser of the Republican presidential campaign — monitoring that would inevitably have revealed campaign communications in stored email and texts, and quite possibly in real-time conversations — based on a stated suspicion that there was a traitorous confederation between the Republican campaign (quite possibly including the Republican nominee) and the Putin regime.

This one is Judge Juan R. Torruella, of the United States Court of Appeals for the First Circuit in Boston. This 84-year-old dinosaur was nominated to the court in the pre-Reagan era, in 1974, by President Gerald Ford. As a Puerto Rican native and strong advocate for the island, the judge is so troubled by his home island’s financial difficulties that he’s calling for a federal grand jury investigate to see if criminal cases can be made against those responsible for the Puerto Rican government’s monumental debt.

To quote him: “I request an investigation by a federal grand jury to determine if there are criminal cases against individuals and organizations inside and outside of Puerto Rico in relation to the economic crisis facing the country.”

What prompted such an outburst at this late hour? It’s that Judge Torruella notes massive amounts of U.S. taxpayer money is pouring into Puerto Rico in the aftermath of hurricanes Irma and Maria. He rightly worries that the same corruption and incompetence that led to the island’s pre-hurricane financial disaster will be repeated. He doesn’t want to see that money squandered and drained away to political lackeys. Here, the judge has a legitimate concern. However…

If the grand jury honestly looked into the matter, it could indict the entire political establishment of Puerto Rico for malfeasance or misfeasance along with the island’s public-sector unions. And would such an investigation turn into a witch hunt to hook those deep-pocketed outsiders who had the audacity to loan money to Puerto Rico? Probably.

Where the judge really goes off the rails is when he engages in the blatantly political. As the San Juan Daily Star reports:

He also called attention to the “passivity’ with which the island has accepted unequal treatment by the U.S. government, and called for mobilizing what he called “allies” in minority sectors in the mainland U.S. to denounce the violation of Puerto Rican civil rights. “It is time for that passivity to end,” Torruella said. “Our cause is just.”

We have been watching outrageous judicial usurpation of power for a full year.

On Tuesday, U.S. District Court Judge Philip Gutierrez issued an order preventing President Trump from revoking DACA protections, and is ordering the administration to reinstate all those who have been dropped from the program. This is more astounding judicial overreach in a year marred by such actions. The initial DACA program was a memo, not legislation, not even a legitimate executive order or regulation. Trump has every right as president to revoke it and enforce that revocation, but this judge has the gall to say he can’t.

An earlier circuit court decision handed down in January, blocked Trump from ending DACA in the first place – an action he had initiated last year. The Department of Justice issued an emergency appeal to the Supreme Court to override this decision, but on Monday, the Supreme Court announced that it would not hear it. While this is standard practice when an issue is being litigated in lower courts, the clear abuse of power exercised by these lower courts should compel the Supremes to consider this a special case.

We have been watching this outrageous judicial usurpation of power for a full year. It is sheer lawlessness and has to stop. All public officials swear an oath to protect and defend, not subvert, the Constitution. What they are doing is a threat to the very legal foundations of our Republic.

There is only one punitive remedy that can be taken against such judges. Congress can impeach them. Unfortunately, Congress has impeached only 15 federal judges in its entire history, and only eight of those were actually removed. A good example is the case of Alcee I. Hastings (another U.S. district court judge), who was impeached for accepting a $150,000 bribe to reduce sentences for two mobsters. That is certainly a clear-cut case for impeachment, not to mention significant jail time, but so are these overtly partisan decisions made by judges specifically to thwart the irrefutable authority vested in the presidency.

For half a century, the federal government has pursued a disastrous strategy in addressing the problems of black Americans. They were designated a victim class, and enormous sums of money were expended on incentives to perpetuate that status.

The welfare state has perpetuated multi-generational pathologies, while the encouragement of victimology and the blame placed on white racism have poisoned race relations instead of healing them.

It’s fair to say the United States government began its long and catastrophic commitment to this approach fifty years ago today (or yesterday): February 29, 1968. On that day, the Kerner Commission (officially the National Advisory Commission on Civil Disorders) delivered its report (official summary; full 400-plus pages), and white racism was officially blamed for the problems of black America.

White racism is essentially responsible for the explosive mixture which has been accumulating in our cities since the end of World War II.

In those days, I was already a political junkie who read the New York Times, the Wall Street Journal, and a local paper and watched network news. I remember well the huge fuss the media made over the Kerner Commission Report. It kicked off an extended campaign that was often labeled a “national soul-searching.”

All the smart people you could find in the media pretty much agreed that we just had to commit ourselves to fighting racism as the solution to the problems of the black community. White guilt gained momentum as a force in individual and group decisions.

The effects of the report were far-reaching. The powerful institutions of America were put on notice that consciously or not, they were perpetuating racism:

Segregation and poverty have created in the racial ghetto a destructive environment totally unknown to most white Americans. What white Americans have never fully understood but what the Negro can never forget – is that white society is deeply implicated in the ghetto. White institutions created it, white institutions maintain it, and white society condones it.

Lately, the left has been spouting about unchallenged moral authority. Rep. Scalise is the closest thing to a sitting official with unchallenged moral authority on mass shootings. He was seriously wounded when a Bernie Sanders supporter opened fire at practice for a congressional charity baseball game. Instead of seizing on that, Rep. Scalise and other Republicans took the high ground.

Meanwhile after Parkland, the left went right back to its swamp.

I don’t expect the media or the left to listen to Rep. Scalise. But maybe this should be a reminder that decency doesn’t work with the indecent. Republicans should have treated the attack just like Parkland.

House Majority Whip Steve Scalise, R-La., said Monday that lawmakers should be focused on addressing mental health to help stop future shootings like the one in Parkland, Fla., on Feb. 14 and the one last summer in which he was shot, before they focus on ways to take people’s guns away.

“Let’s focus more on addressing these problems in mental health that we’ve started to deal with in Congress,” Scalise said on Fox News. “Let’s close loopholes, let’s figure out what went wrong with government before people start talking about taking away the rights of law abiding citizens.”

That would be the right thing to do. There’s majority support for it. But the left is obsessed with dismantling the Bill of Rights instead.

The reactions to the Florida school shooting have been so predictable that most commentary starts with some variation of “here we go again.” The usual “solutions” to the problem are trotted out, each with its varying degrees of weakness, and none able to achieve what everybody expects––no more massacres of kids at school. But more interesting than this fossilized debate are the unspoken assumptions behind the various recommendations, and our culture’s inability to talk meaningfully about the most consequential phenomenon in history: human evil. That’s why it’s easier to ritually repeat the same failed decades-old “solutions,” or to politicize the bloodshed for partisan gain.

The left, of course, thinks “smarter” gun control is the answer. They want to ban “assault rifles,” a scare-term that confuses semiautomatic with automatic weapons, the sale of which is already strictly limited. Then they sell the bait-and-switch by highlighting sinister-looking add-ons like silencers or high-capacity magazines. But if anti-gun nuts were concerned with gun deaths rather than the relatively rare but more politically fungible multiple-victim school-shootings, they’d know that very few murders involve rifles. In 2016, murderers were 19 times more likely to use handguns than rifles. And more murders were committed with hands and feet than with rifles. Demonizers of “assault rifles” forget that they were banned from 1994 to 2004, and that the ban was ineffective, failing to stop the Columbine shooters in 1999, or even to reduce firearm killings.

Other talking points are equally useless for anything other than partisan gain. Like the “assault rifle,” the NRA has become the bogeyman Dems reflexively trot out for a two-minute hate after every high-profile shooting. Politicians who gobble up billions of dollars from public employee unions and tech plutocrats condemn the comparative pittance the NRA spends in lobbying to defend a Constitutional right. Confiscation of guns, along the lines of Australia’s program a few years back, runs afoul of the Second Amendment, not to mention being practically impossible given that there are about 300 million guns in circulation, five million of which are the dreaded AR-15 “assault rifles.”

Former president Obama actually said the following at his secret MIT speech, according to the transcript obtained by Reason magazine: “We didn’t have a scandal that embarrassed us. I know that seems like a low bar.”

It seems as though Obama set a tremendously high bar as to what would embarrass him.

It should have been embarrassing to Obama and his supporters when:

He continually lied by saying you could keep your doctor and your health plan and that premiums would go down when Obamacare passed.

He had a gun-running operation called Fast and Furious, where the Bureau of Alcohol, Tobacco, Firearms, and Explosives lost track of over 2,000 guns it allowed to be sold to Mexican drug cartels and people died. Obama claimed he had no idea about the project but claimed executive privilege to hide documents.

His IRS targeted political opponents, violating their free speech and freedom of association rights granted by the Constitution.

He sicced his Justice Department goons on the Little Sisters of the Poor, suing them for daring to believe they had religious freedom.

Planned Parenthood personnel were caught bragging that they crunched and crushed babies for profit. Somehow, Obama, the media, and other Democrats didn’t have any empathy for the babies and weren’t embarrassed at all about this appalling practice. Nor did they do anything to hold Planned Parenthood accountable, ignoring the law.

He left people to die in Libya while he and Hillary concocted a lie to protect their political power. He even lied to the families of those who died and had Susan Rice continually lie to the public, showing that he and Hillary have zero empathy for those who died and their families. His minions arrested and imprisoned a man they knowingly falsely blamed for an anti-Mohammed video. And people say Trump has no empathy and doesn’t discharge his duties as president.

My column that posted last night is an in-depth analysis of the Schiff memo, the response of House Intelligence Committee Democrats to the Nunes memo published by committee Republicans. I offer a variety of reasons why the response principally proffered by the committee’s ranking member, Representative Adam Schiff (D., Calif.), fails to defend the issuance of FISA court surveillance warrants against an American citizen tied to the Trump campaign, Carter Page, in a counterintelligence investigation seeking to probe suspected ties between Donald Trump and Russia. The warrant was issued based on uncorroborated hearsay allegations from unknown sources, compiled in the so-called Steele dossier. The FBI and Justice Department failed to disclose that these allegations were generated by an opposition-research project commissioned by the Hillary Clinton campaign and the Democratic National Committee.

As I argue in the column, the Schiff memo leaves no doubt that the key allegation supporting issuance of the warrant is the Steele dossier’s claim that, while on a well-publicized trip to Moscow in July 2016, Page met with two top Putin regime operatives, Igor Sechin and Igor Divyekin. Page credibly denies the meetings; former British spy Christoper Steele’s claim that they happened is based on unidentified hearsay sources that he concedes he never confirmed; and all indications are that the FBI never corroborated them. In congressional testimony, Former FBI director James Comey described the dossier’s allegations about Donald Trump as “salacious and unverified.” Furthermore, according to a memo published by two senior Senate Judiciary Committee members — Chairman Charles Grassley (R., Iowa) and Senator Lindsey Graham (R., S.C.) — then-director Comey conceded that the Bureau did not corroborate Steele’s sources and relied on the fact that Steele had given the FBI reliable information in the past. (See Grassley-Graham memo, p.2.)

At the Washington Examiner, Byron York picks up on something I wish I had highlighted: The Schiff memo’s focus on past Russian intelligence efforts (in 2013) to recruit Page to become an agent for Russia. As Byron notes, the Schiff memo claims that “Steele’s information about Page was consistent with the FBI’s assessment of Russian intelligence efforts to recruit him and his connections to Russian persons of interest.”

The fact that a foreign power is trying to recruit an American to become an agent for that foreign power is not a sufficient basis to issue a surveillance warrant against the American under FISA. It would, of course, be sufficient to issue a warrant against the foreign spies who are making the recruitment efforts, but it is not enough for a warrant against the American citizen who is the target of the recruitment effort.

Readers of Hegel’s Phenomenology of Spirit will recall the philosopher’s withering comments about “the dogmatism of mere assertion” which yields naught but an empty and deceptive feeling: self-certitude.

I thought about Hegel’s comments this morning when looking through the Democrats’ attempted rebuttal of the memo released earlier this month by Republicans on the House Intelligence Committee.

It is interesting to compare the two memos, both as rhetorical artifacts and as substantive contributions to the debate over possible “Russian collusion” in the 2016 presidential election. Even a comparison of their physical appearance is revealing. Let’s start there.

The Republicans’ memo, overseen by Devin Nunes, chairman of the House Intelligence Committee, is a four-and-a-half-page précis of findings from an ongoing oversight investigation into the behavior of the FBI and Department of Justice during the 2016 election cycle. It is prefaced by a brief letter from presidential counsel Donald McGahn to Congressman Nunes laying out the rationale for declassifying the memo and releasing it to the public. Each page of the memo is marked “UNCLASSIFIED” and the legend “TOP SECRET NOFORN” (for “no foreign nationals”) on each page is struck through with a heavy black stroke. Otherwise it is clean.

The Democrats’ memo, overseen by ranking minority member Adam Schiff, spills on to a tenth page. It is probably only about a half again as long as the Republicans’ memo, however, because—in addition to bearing the “Unclassified” stamps and strike-throughs of the “top secret” advisories—its text is littered with redactions: many passages of the text are blotted out. Were those redactions required by the FBI? By the executive branch? It was not said. Nor was it said why the Democrats did not take the redactions on board and present a clean text. I do not know the answer. My suspicion is that they wanted the blocks of black to stand as mute, non-specific but nonetheless graphically incriminating witnesses to their allegations.

For example, much of the memo deals with Carter Page, the American businessman who briefly served as a volunteer foreign policy advisor for the Trump campaign. In a section of the memo headed “Page’s Connections to Russian Government and Intelligence Officials” we encounter the following: “As DOJ described in detail to the Court, Page had an extensive record as”—as what? We don’t know. The juicy news is submerged beneath a minatory stroke of black.

Similarly, after informing us that a “Russian intelligence officer targeted Page for recruitment”—eyebrow raising, what?—we read that “Page showed”—another black stroke, starving knowledge but inflaming the imagination. What did Page show? Interest? Did he promise to smuggle the nuclear launch codes into Moscow? We don’t know. But we can think the worst.

Open the Books CEO Andrew Andrzejewski on the push for more transparency on federal government workers’ pay.

The government is keeping the salary information of more than 250,000 employees secret, according to Andrew Andrzejewski, the CEO of OpenTheBooks.com, a website that tracks government spending.

Over the past 11 years, OpenTheBooks has compiled the salaries and bonuses of 2 million federal government workers and posted them online by zip code.

But this year the government concealed the salaries of 255,000 employees, Andrzejewski said.

“It’s one in five federal bureaucrats,” Andrzejewski told Stuart Varney on FOX Business’ “Varney & Co.” “Their salaries are now redacted, and we estimate that the total payroll funded by the American taxpayer now hidden in the swamp is $20 billion.”