RUTHFULLY YOURS

Note: Yesterday, I testified before the House Judiciary Committee in Part II of a hearing on “Examining the Allegations of Misconduct Against IRS Commissioner John Koskinen.”

The hearing, at which three other lawyers also testified, explored impeachment principles. Below is the written testimony I submitted prior to the hearing.

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Chairman Goodlatte, Congressman Nadler, members of the committee, my name is Andrew C. McCarthy. For over eighteen years, I was a federal prosecutor in the Southern District of New York, retiring from the Justice Department in 2003 as the chief assistant United States attorney in charge of the Southern District’s satellite office (which oversees federal law enforcement in six counties north of the Bronx).

During my tenure in the office, I investigated, tried and supervised the prosecution of numerous criminal cases, running the gamut from organized crime and narcotics trafficking through political corruption and terrorism. In addition, I held various executive staff positions in the office, including deputy chief of the appellate unit, in which I wrote and edited briefs submitted by the United States to the Court of Appeals for the Second Circuit, and prepared other prosecutors for oral argument (in addition to writing briefs and presenting oral argument in numerous of my own cases).

During my Justice Department service, I was twice awarded the Justice Department’s highest honors: the Attorney General’s Award for Distinguished Service in 1987 for the “Pizza Connection” organized crime and international narcotics trafficking case targeting the Sicilian mafia, and the Attorney General’s Award for Extraordinary Service in 1996 for the terrorism prosecution against the jihadist cell of Omar Abdel Rahman (a/k/a “the Blind Sheikh”) responsible for (among other atrocities) the 1993 World Trade Center bombing and an unsuccessful plot to bomb New York City landmarks.

Since retiring from the Justice Department, I have been a writer, focusing on matters of law enforcement, national security, constitutional law, politics and culture. Concededly, I tend to come at policy matters from a conservative and constitutionalist perspective; nevertheless, I have always believed the application of legal principles and precedent should be a non-partisan endeavor, just as it was when I was a prosecutor. In my post-Justice Department career, I have written several books, including (in 2014), Faithless Execution: Building the Political Case for Obama’s Impeachment.

In a nutshell, Faithless Execution argues that the Framers saw impeachment as an “indispensable” tool (to quote James Madison) in the constitutional framework of divided authorities, which obliges Congress to police executive overreach. The principal purpose of the Constitution is to limit the power of government to intrude on the liberties and suppress the rights of the American people. Separation of powers is the primary way the Constitution guarantees these liberties and rights. Thus, the Framers were deeply worried that maladministration — including overreach, lawlessness, or incompetence — could inflate the constitutionally-limited executive into an authoritarian rogue who undermines our constitutional order.

WASHINGTON—A divided Supreme Court Thursday upheld racial preferences in public-university admissions, a defeat to a yearslong conservative drive to roll back affirmative action.

Writing for a 4-3 court, Justice Anthony Kennedy found that the University of Texas at Austin’s challenged plan passed constitutional muster because it was designed in a narrow way to improve diversity on campus. The school’s plan considered race as an additional factor when evaluating certain black and Hispanic applicants.

Justice Kennedy, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, said universities are defined by “intangible qualities…which make for greatness.”

“Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission,” Justice Kennedy wrote in a 20-page opinion.

At issue was a long-running lawsuit filed by Abigail Fisher, a white applicant who was denied admission by the University of Texas at Austin in 2008. She alleged that the state’s flagship university violated the Constitution’s equal-protection guarantee by giving an edge in admissions to black and Hispanic students.

​​“I am disappointed that the Supreme Court has ruled that students applying to the University of Texas can be treated differently because of their race or ethnicity,” Ms. Fisher said in a statement issued by the Project on Fair Representation, an organization that financed her case and has sponsored other litigation opposing government programs that benefit minorities. CONTINUE AT SITE

Hillary Clinton is a seasoned liberal politician, but one with few core beliefs. Her positions on subjects such as gay marriage, free-trade agreements, the Keystone XL pipeline, the Iraq War, the Assad regime in Syria, and the use of the term “radical Islam” all seem to hinge on what she perceives 51 percent of the public to believe on any given day.

Such politicians believe truth is a relative construct. Things are deemed false by politicians only if they cannot convince the public that they are true — and vice versa. When the majority of Americans no longer believe Clinton’s yarns about her private e-mail server to the point of not wanting to vote for her, then she will change her narrative and create new, convenient truths to reflect the new consensus.

Donald Trump is an amateur politician but a politician nevertheless. He is ostensibly conservative, but he likewise seems to change his positions on a number of issues — from abortion to the Iraq War — depending on what he feels has become the majority position. And as with Clinton, Trump’s idea of truth is defined as what works, while falsity is simply any narrative that proved unusable.

Politicians glad-hand, pander, and kiss babies as they seek to become megaphones for majority opinions. But ideologues are different. They often brood and lecture that their utopian dreams are not shared by the supposedly less informed public.

For those of you who may still be laboring under the illusion that we live in something resembling the antiquated notion of a constitutional republic, allow me to enlighten you about how things have changed since your high school government class. Here’s how the legislative branch works now:

When the Democrats are in power they get everything they want, even if it means ramming through legislation in the middle of the night and twisting the rules until they are virtually unrecognizable. When the Republicans are in power, the Democrats still get everything they want because the Republicans basically just hand it to them to avoid being called racists or misogynists. When they don’t get what they want, Democrats throw temper tantrums and hold their breath until they get what they want. Either way, they win. Always.

This is definitely not how I learned it in government class, but trust me, this is how it works now.

Right now, House Democrats, led by 1960s civil rights leader Rep. John Lewis, are staging a childish sit-in—Occupy-style—on the floor of the House because Republicans won’t cave fast enough on taking away our Second Amendment rights. (Don’t worry, Trump will be here to do it soon enough…I heard his surrogate say it on CNN tonight!) Despite the fact that the terrorist who shot up the nightclub in Orlando wasn’t on the no-fly list, the Twilight Zone-dwellers in the Democratic Party are sure, so very sure, that preventing people on the no-fly list from buying guns would have stopped the attack. (What was that Reagan said about Democrats knowing so many things that aren’t so?)
Democrats Can’t Even Get ‘Gawker’ to Support Their Stupid Sit-In

If you’re envisioning Rosa Parks and Martin Luther King, Jr. when you picture this House sit-in in your mind, you’d be way off. Think a slumber party with a bunch of 7th grade girls. Our well-paid members of Congress are enjoying Starbuck’s, Chinese food, and taking many, many selfies with their friends (I wouldn’t be surprised if there are manis and pedis too!). They’ve also sent out for pillows and blankies, because you definitely need pillows if you’re going to sit on that luxurious carpet all night.

As a long-time resident of Connecticut, I have been patient and respectful while my representatives in Congress have railed against “gun violence” and called for new and sweeping restrictions on gun ownership. The Newtown, Connecticut, incident was tragic and, politics aside, recognition of the tragedy was appropriate and necessary.

But now they have gone too far. Senator Chris Murphy has been focused on expanding gun control to the exclusion of everything else. He led a filibuster in the Senate to highlight his position — fair enough. But after the gun-control proposals were voted down, Murphy accused Republicans of “sell[ing] weapons to ISIS.” Connecticut’s other senator, Richard Blumenthal, has been a less visible but equally engaged activist for increased gun restrictions. Congressman Jim Himes and other Connecticut representatives walked out of a moment of silence for Orlando in the House of Representatives, saying that silence mocks the victims.

To these legislators, the Orlando incident was little more than an opportunity to revive the memory of Newtown and once again advance their gun control agenda.

These people need to understand some basic truths:

1. Citizens have a natural right to own a gun. This is an unalienable right — by virtue of our right to life, liberty, and property — to defend family, self, and possessions.

2. The right to “keep and bear arms” is not granted to citizens by virtue of the Second Amendment. It is not bestowed upon us by government or by our elected representatives. Rather, it is a fundamental citizen right, and therefore one that government is morally obliged to protect for all citizens.

3. The Second Amendment exists to protect citizens from precisely the gun-rights abuses we are seeing from government today. It exists to prevent our representatives from interfering with our fundamental human right to keep (own) and bear (carry) arms, and all else that gun ownership entails (such as access to ammunition and indemnification of gun manufacturers).

4. When I need to defend my family and possessions, the police will surely be far away. Our town police force is capable and competent, the department is certified to high standards, but the town is sprawling, the force is modest, and response times are long. My representatives in government will be even farther away in the event of trouble.

Another day, another judicial rebuke to President Obama’s contempt for the rule of law. On Wednesday a federal judge struck down an oil and gas drilling rule imposed with no statutory authority.

In 2015 the Bureau of Land Management published new regulations about well construction and water management for hydraulic fracturing, or fracking, that takes place on federal and Indian lands. The BLM asserted “broad authority” to control oil and gas operations on the basis of laws that were passed in 1920, 1930, 1938, 1976 and 1982 and were allegedly ambiguous. Thus the agency said it deserved the benefit of the interpretive doubt that the courts call Chevron deference.

Abusing Chevron is an Obama specialty. But BLM’s overreach was notably egregious because Congress passed an energy law in 2005 that stripped the executive branch of fracking jurisdiction and gave that power to the states.

The BLM argued that Congress’s choice didn’t matter because the bureau wasn’t mentioned by name in the 2005 law. That claim inspired Judge Scott Skavdahl of Wyoming—an Obama appointee—to conduct a remedial seminar in the Constitution’s separation of powers.

Under the BLM argument, Judge Skavdahl writes, “there would be no limit to the scope or extent of congressionally delegated authority BLM has. . . . Having explicitly removed the only source of specific federal agency authority over fracking, it defies common sense for the BLM to argue that Congress intended to allow it to regulate the same activity under a general statute that says nothing about hydraulic fracturing.”

The Obama administration’s relentless campaign against for-profit colleges is succeeding: More than 180 have closed in the past two years. The Education Department projects that 1,400 vocational programs educating 840,000 students won’t survive its gainful-employment rule, which ties federal student aid to debt and earnings.

But the administration isn’t content with shutting down for-profits: Now regulators and prosecutors are even going after a businessman who waved the white flag and converted his vocational schools into nonprofits. With this administration, it’s a sin if you ever tried to make a buck.

In 2012 Carl Barney merged the CollegeAmerica, Stevens-Henager College, Independence University and California College San Diego with the nonprofit Center for Excellence in Higher Education (CEHE), which promotes reforms in college philanthropy. The 75-year-old British immigrant, who had been the for-profit colleges’ sole proprietor, tells me that he wanted to reduce his day-to-day responsibilities and channel more resources into education rather than paying taxes. “I didn’t want to be as involved,” he says. “I wanted to put more money back into the colleges.” He became the chairman of the new group of nonprofit colleges.

As the merger was being completed in 2012, Colorado Attorney General John Suthers, a Republican, began an investigation. In November 2014, the AG sued CEHE. According to the complaint, the colleges duped students into enrolling with deceptive ads such as one promising to help them “make more money and have a real career.”