RUTHFULLY YOURS

If you work for any extended amount of time in Washington, you are likely to meet people who work within the intelligence and law enforcement communities. You learn to recognize potential sources and those who will never be. The bad sources love to tell stories, so many stories, with at least a veneer of truth. The good sources will tell far fewer stories, but only when it’s important. But the most frequent stories you will hear, from good and bad, are stories of internal dysfunction and irresponsible uses of power. This is not confined to one administration or another, but is a recurring and expected fact of life within the agencies that ought to be focused on securing our liberties and protecting us from threats, foreign and domestic, not spying on an ex, using taxpayer funds for professional gain, or preventing the return of a romantic rival by adding them to a watch list. Once you’ve heard enough of these stories, a realization may dawn on you: these institutions are as dysfunctional as all the others, with their own internal politics, defects, aspiring people, and conflicted forces that often cross the lines of law and ethics in pursuit of their goals. Not losing faith in them at that juncture is a difficult thing indeed.

That brings us to yesterday’s FBI briefing on the shooting targeting Republicans in Alexandria, a briefing that could not be more bizarre in its content and its conclusions. Mollie Hemingway has more:

“The FBI admits that Hodgkinson: vociferously raged against Republicans in online forums, had a piece of paper bearing the names of six members of Congress, was reported for doing target practice outside his home in recent months before moving to Alexandria, had mapped out a trip to the DC area, took multiple photos of the baseball field he would later shoot up, three days after the New York Times mentioned that Republicans practiced baseball at an Alexandria baseball field with little security, lived out of his van at the YMCA directly next door to the baseball field he shot up, legally purchased a rifle in March 2003 and 9 mm handgun “in November 2016,” modified the rifle at some point to accept a detachable magazine and replaced the original stock with a folding stock, rented a storage facility to hide hundreds of rounds of ammunition and additional rifle components, asked “Is this the Republican or Democrat baseball team?” before firing on the Republicans, ran a Google search for information on the “2017 Republican Convention” hours before the shooting, and took photos at high-profile Washington locations, including the east front plaza of the U.S. Capitol and the Dirksen Senate Office.

“We know from other reporting that the list was of six Republican Freedom Caucus members, including Rep. Mo Brooks, who was present at the practice.

“So what does the FBI decide this information means? Well, the takeaway of the briefing was characterized well by the Associated Press headline about it: “FBI: Gunman who shot congressman had no target in mind.” The Associated Press reported the FBI: believes the gunman “had no concrete plan to inflict violence” against Republicans, “had not yet clarified who, if anyone, he planned to target, or why,” believes he may have just “happened upon” the baseball game the morning of June 14, and that the attack appeared “spontaneous,” are unclear on the “context” of Hodgkinson’s note with six names of members of Congress, does not believe that photographs of the baseball field or other sites “represented surveillance of intended targets,” and “painted a picture of a down-on-his-luck man with few future prospects.”

“In fact, USA Today went with “FBI offers portrait of troubled Alexandria shooter with ‘anger management problem’” for their headline, since that’s what the FBI emphasized in the briefing.”

There’s also this incredible tidbit, which somehow has received little to no attention: “Hodgkinson also visited the office of Vermont Sen. Bernie Sanders, whose campaign he had worked on as a volunteer, and was in email contact with the two Democratic senators from his home state.” If this was a shooter who had worked for Ted Cruz and was in contact via email with both of the Senators from Texas, wouldn’t we know about it?

In a budget proposal generating a quick rebuke on Capitol Hill, President Trump calls for a 22% cut to the National Institutes of Health—a move that would take $7.7 billion away from research on diseases like Alzheimer’s, cancer and heart disease. This is an unfortunate request. The NIH is one of our most strategically important federal assets.

Rather than hacking away at the topline budget, the administration should play to the innovative strengths of NIH. This may mean a more mission-oriented approach—using science to help create new sectors and fields. But it could also mean a more market-oriented approach that prioritizes the development of high-quality patents.

In a new Manhattan Institute report, we find that NIH does particularly well in this regard: Its patent portfolio produces 20.4% more market value than average patents, with every $100 million in NIH funding associated with $598 million in downstream private research and development. For some of NIH’s most productive programs, total downstream R&D is as high as $3.3 billion for every $100 million in grant funding.

Patents aren’t everything—scientific knowledge is the main product of public R&D. But slashing away so much potential new technology via broad budget cuts will endanger discoveries that serve as the commercial foundation for new companies, jobs and exports in biotech and the life sciences.

By contrast, Mr. Trump’s budget proposal would provide the Defense Advanced Research Projects Agency a 10% increase. If the administration likes Darpa’s impressive record of radical innovation, it should love NIH’s patent hubs, particularly the Institute of Biomedical Imaging and Bioengineering and the Human Genome Research Institute. These two NIH programs produce twice as many direct and indirect patents as the renowned defense program.

While the research community sometimes considers patents to be a “less pure” derivative of science, patentable discoveries have been an integral part of some of medicine’s most innovative and transformative breakthroughs. Our research also shows that of NIH’s 33 teams of Nobel laureates between 1990 and 2010, more than 75% patented their discoveries at a prolific rate. They weren’t always blockbuster new drugs. Most of the time, new patents represent advancements that push an existing field of research forward, or allow entirely new lines of inquiry to be examined.

The product of a grant from NIH’s Heart, Lung and Blood Institute, the “lab on a chip” is a series of microscopic valves and tubes, which combine to create a “fluidic circuit” that can be used to diagnose infectious diseases quickly and cheaply. It is among the NIH innovations most cited by downstream developers in the life-science sector. The NIH’s Institute of Diabetes and Digestive and Kidney Diseases invented a tiny under-the-skin sensor that continuously monitors blood-sugar levels in patients with diabetes, a big upgrade in accuracy and patient comfort.

Fostering patentable innovation should appeal to President Trump. He is the only U.S. president other than Abraham Lincoln to have his name on a U.S. patent header. Though he wasn’t the inventor, Trump Taj Mahal Associates’ 1996 patent for a “Proportional payout method for progressive linked gaming machines” makes Mr. Trump, at least indirectly, the second presidential patenter. CONTINUE AT SITE

Senate Republicans released their draft bill to repeal and replace ObamaCare on Thursday, and Majority Leader Mitch McConnell is hoping for a vote next week. The binary choice now is between pushing past the media and Democratic flak to pass a historic achievement, or wilting under the pressure and ratifying the ObamaCare status quo.

The bill is an imperfect compromise between moderate and conservative Republicans, and it makes pains to accommodate different interests and the Americans, states and businesses that have adapted to ObamaCare over the years. The center-right nature of the details means the Senate won’t be ushering in some free-market utopia. But the reform is a major improvement over the U.S. health-care status quo that will worsen if the bill fails.
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The Senate bill works off the American Health Care Act that the House passed in May. Like the House, the legislation replaces ObamaCare’s subsidies with tax credits for people who buy insurance on the individual market, ends Medicaid’s status as an open-ended entitlement, and starts to resolve some of the health-care system’s abiding flaws.

Medicaid was most divisive for Republicans in their months-long internal debate, so the pleasant surprise is that the Senate’s entitlement overhaul is somewhat stronger than the House’s. The program originally meant for poor women, children and the disabled—which ObamaCare opened to able-bodied, working-age adults above the poverty level—would be modernized for the first time. This could become the most consequential social reform since the welfare reconstruction of 1996.

Like the House, the Senate would end the funding formula that rewards states for spending more and transition to block grants, allocated on per capita enrollment. Governors would receive far more regulatory flexibility to manage their programs. Under the final House bill, the grants would max out at the rate of inflation plus one percentage point, starting in 2020.

The Senate waits four years instead of three but pegs the grants to inflation with no adjuster. The danger of delay is that grants become another phony rule like the old Medicare “doc fix” that Congress refused to enforce. But the Senate’s structural changes are more ambitious, and the benefits of those revisions will compound over time.

The Senate also ends ObamaCare’s discrimination between old and new enrollees, which liberals caricature as “rolling back” the Medicaid expansion. The government now pays the whole cost for the expansion population, to encourage Governors to join, but states are only compensated at a national-average 52% match rate for traditional beneficiaries like poor kids. Funding everyone equally—starting in 2021—will cause Governors to find efficiencies and retarget care to the most vulnerable.

We may be thankful to Alan Dershowitz, Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School, for reminding us of the delicious irony of an investigation which began with “reports” of collusion with the Russians by Team Trump and charges of Russian hacking of our elections, now reverting to the tactics of Russia’s most murderous tyrant, Josef Stalin. As Dershowitz writes in the Washington Examiner:

Special counsel Robert Mueller was commissioned to investigate not only crime but the entire Russian “matter.” That is an ominous development that endangers the civil liberties of all Americans.

Federal prosecutors generally begin by identifying specific crimes that may have been committed — in this case, violation of federal statutes. But no one has yet identified the specific statute or statutes that constrain Mueller’s investigation of the Russian matter. It is not a violation of any federal law for a campaign to have collaborated with a foreign government to help elect their candidate…

One does not have to go back to the Soviet Union and Lavrentiy Beria’s infamous boast to Stalin, “Show me the man and I will show you the crime,” in order to be concerned about the expansion of elastic criminal statutes. There are enough examples of abuse in our own history.

From McCarthyism to the failed prosecutions of Sen. Ted Stevens, Rep. Thomas DeLay, Gov. Rick Perry and others, we have seen vague criminal statutes stretched in an effort to criminalize political differences.

Indeed, now we here reports that Mueller’s investigation will range anywhere from Jared Kutchner’s finances to perhaps any unpaid parking tickets Sean Spicer may have. To paraphrase the boast of head of Stalin’s secret police, show Mueller the man, and he will find a crime, just as Mueller’s best friend, James Comey, found with Martha Stewart.

There too we see a vindictive prosecutor in search of a crime and it doesn’t have to be the original charge, if there is an original charge. As the Daily Caller reported:

FBI Director James Comey declined to recommend criminal charges against former Secretary of State Hillary Clinton for mishandling classified material Tuesday. But back in 2004, he led what legal observers call a “petty and vindictive” prosecution against interior design icon Martha Stewart for a lesser offense.

Stewart served a five-month prison sentence in 2004 at the Federal Prison Camp in Alderson, West Virginia, also known as “Camp Cupcake,” for lying to federal investigators about possible insider trading. In the years since the case, there is a consensus in the legal community that Comey’s prosecution was overzealous and vindictive.

Donald Trump earned respect from the Washington establishment for appointing three of the nation’s most accomplished generals to direct his national-security policy: James Mattis (secretary of defense), H. R. McMaster (national-security adviser), and John Kelly (secretary of homeland security).

In the first five months of the Trump administration, the three generals — along with Secretary of State Rex Tillerson, the former Exxon Mobil CEO — have already recalibrated America’s defenses.

At home, illegal immigration is down by some 70 percent. Abroad, a new policy of principled realism seeks to reestablish deterrence through credible threats of retaliation. The generals are repairing old friendships with allies and neutrals while warning traditional enemies not to press their luck.

Trump has turned over most of the details of military operations to his generals. According to his critics, Trump is improperly outsourcing to his generals both strategic decision-making and its tactical implementation.

But is Trump really doing that?

In his campaign, Trump vowed to avoid new ground wars while not losing those he inherited. He pledged to wipe out ISIS and radical Islamic terrorism without invading Middle Eastern countries to turn them into democracies.

Those are wide but nonetheless unmistakable parameters.

Within them, the U.S. military can drop a huge bomb on the Taliban, strike the chemical weapons depots of Syria’s Bashar Assad, or choose the sort of ships it will use to deter North Korean aggression — without Trump poring over a map, or hectoring Mattis or McMaster about what particular move is politically appropriate or might poll well.

Other presidents have done the same.

A wartime President Lincoln — up for reelection in 1864 — wanted the tottering Confederacy invaded and humiliated. But he had no idea that General William Tecumseh Sherman would interpret that vague wish as nearly destroying Atlanta, and then cutting his supply lines to march across Georgia to the sea at Savannah.

When Sherman pulled off the March to the Sea, Lincoln confessed that he had been wrongly skeptical of, totally surprised, and utterly delighted with Sherman’s victories. He then left it to Sherman and General Ulysses S. Grant to plan the final campaign of the war.

Editor’s Note: The following is a memo crafted by the author as it ought to be written to Special Counsel, Robert Mueller from the two Judiciary Committee chairmen in Congress.

If only . . .
From: Charles Grassley – Chairman, Senate Judiciary Committee & Bob Goodlatte – Chairman, House Judiciary Committee

To: Robert Mueller – Special Counsel, Department of Justice

Subject: Oversight of your office
As our committees consider the Justice Department’s budget request to authorize appropriations for the department’s many activities for the upcoming fiscal year, we try to understand those activities’ scope and efficacy, focusing especially on ones that raise questions with the public. Making well-informed judgments regarding funding and legislative guidance of departmental activities under our purview is our constitutional responsibility. We are confident that you, having been a valuable partner in this exercise of that responsibility during your years as director of the FBI, will answer these questions, because they are essential for the Congress and the public’s understanding of what your office is doing and not doing.

The deputy attorney general established your office to “to inform or consult with the Attorney General or others within the Department about the conduct of his or her duties and responsibilities” specifically about “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump…” .

If we read this correctly, you are to report to the nation’s chief law enforcement officials about their “duties and responsibilities.” The duties and responsibilities of the Department of Justice—correct us if we are mistaken—can only be the enforcement of the laws of the United States.

We hope that you will forswear any investigation not pursuant to the underlying crime, if any, specified in your appointment order, and can assure you that our committees will make sure that no funds authorized by us can be used for such purposes.

This being the case, would you enumerate for us the laws of the United States which you believe “individuals associated with the campaign of President Donald Trump” may have broken, who these “individuals” may be, and the “probable cause” for so believing in the possibility of their violation, that suffices as basis for investigating them or anyone else regarding “links and coordination “with “the Russian government.”

The Deputy attorney General’s establishment order also contains the anodyne words “any other matters that arose or may arise from the investigation.” To understand what these words mean to you, we must ask: For you to investigate any person, what relationship need there be between that person’s activities and any violation of a U.S statute related to that person’s “links and/or coordination between the Russian government…”? Since the Department of Justice’s purview stops at the edge of politics, what do you believe that these words do not authorize you to “inform or consult” about in a prosecutorial manner?

So I’ve been wondering: Why on earth does a prosecutor, brought in to investigate a case in which there is no apparent crime, need a staff of 14 lawyers?https://amgreatness.com/2017/06/21/muellers-empire-legions-lawyers-bottomless-budget-limitless-jurisdiction/

Or, I should say, “14 lawyers and counting.” According to the press spokesman for special counsel Robert Mueller—yeah, he’s got a press spokesman, too—there are “several more in the pipeline.”

Concededly, none of Mueller’s recruits requires Senate confirmation, as do Justice Department officials—notwithstanding that the former may end up playing a far more consequential role in the fate of the Trump administration. But does it seem strange to anyone else that, by comparison, the president of the United States has managed to get—count ’em—three appointees confirmed to Justice Department positions in five months?

A special counsel, the need for whom is far from obvious, has in just a few days staffed up with four times the number of lawyers. And all for a single investigation that the FBI has described as a counterintelligence probe—i.e., not a criminal investigation, the kind for which you actually need lawyers.

The way this is supposed to work is: the Justice Department first identifies a likely crime, and then assigns a prosecutor to investigate it. Here, by contrast, there are no parameters imposed on the special counsel’s jurisdiction. Mueller is loosed—with 14 lawyers and more coming—to conduct what I’ve called a “fishing expedition.”

Oh, and about those three Justice Department appointees: One of them, Attorney General Jeff Sessions, has already recused himself from the investigation in question—the department’s most high profile undertaking. Another, Deputy Attorney General Rod Rosenstein, is reportedly weighing whether he, too, should bow out. Perhaps he figures he has already done quite enough, having sicced a special-counsel investigation on the Trump Administration by flouting both the regulation that requires a basis for a criminal investigation before a special counsel is appointed, and the regulation that requires limiting the special counsel’s jurisdiction to the specific factual matter that triggers this criminal investigation.

The way this is supposed to work is: the Justice Department first identifies a likely crime, and then assigns a prosecutor to investigate it. Here, by contrast, there are no parameters imposed on the special counsel’s jurisdiction. Mueller is loosed—with 14 lawyers and more coming—to conduct what I’ve called a “fishing expedition.” But it is actually worse than that, as sagely observed in these pages by my friend John Eastman, the Claremont Institute scholar and former Chapman Law School dean. Mueller’s probe is the functional equivalent of a general warrant: a boundless writ to search for incriminating evidence. It is the very evil the Fourth Amendment was adopted to forbid: a scorch-the-earth investigation in the absence of probable cause that a crime has been committed.

For now, Mueller appears utterly without limits, in his writ and in his resources. As the ease with which he has staffed up shows, it is not hard to recruit lawyers. All you need is money. Mueller has a bottomless budget, thanks to a bit of Treasury Department chicanery known as “permanent, indefinite appropriations.”

Under the Constitution’s Appropriations Clause, no funding is supposed to be paid out of the treasury unless Congress has approved it in advance. Under the Framers’ design, with an eye toward limited, accountable government, every spending initiative must compete with every other one when Congress enacts a budget. Lawmakers must decide what we can and can’t afford when they draw on what is supposed to be the finite pot of money confiscated from taxpayers. We are supposed to know what we are underwriting and what it will cost.

John Eastman, law professor at Chapman University, writes in American Greatness this week that the powers invested in Special Counsel Mueller to investigate “Russian hacking/collusion/obstruction poses grave dangers to our body politic and our liberty.” His advice to President Trump: Fight fire with fire. Turn the law and the courts back on your opponents. Trump is being investigated without any probable cause of a crime. The Obama administration, in contrast, is a target-rich arena of criminal activity.

It is unconstitutional to issue a search warrant when there has been no crime and there is no probable cause. But that is exactly what President Trump’s DOJ has inflicted on the president and his team with Mueller’s special investigation. It was not just cowardice, but folly for the DOJ to buckle to the left-wing media’s hysterical insistence to investigate our president’s alleged collusion with the FSB.

According to Professor Eastman:

The special counsel will not to track down the details of a crime known to have been committed and determine “who dunnit,” but will scour the personal and business affairs of a select group of people – the President of the United States, members of his family, his business associates, and members of his presidential campaign and transition teams – to see if any crime can be found (or worse, manufactured by luring someone into making a conflicting statement at some point). This is not a proper use of prosecutorial power, but a “witch hunt,” as President Trump himself correctly observed. Or, to put it more in terms of legalese, this special prosecutor has effectively been given a “writ of assistance” and the power to exercise a “general warrant” against this select group of people, including the President of the United States, recently elected by a fairly wide margin of the electoral vote.

That is the very kind of thing our Fourth Amendment was adopted to prevent. Indeed, the issuance of general warrants and writs of assistance is quite arguably the spark that ignited America’s war for independence.

Professor Eastman suggests fighting fire with fire, prosecution with prosecution.