RUTHFULLY YOURS

“It’s a plot against our election, not by the Russians, but by the left. It’s a plot against freedom of speech, not by the Russians, but by the left. The plotters took a Russian propaganda and influence operation and turned it into a pretext for the greatest assault on democracy and freedom in American history.”

Trump’s election victory was the Reichstag fire of internet censorship. The fury and conspiracy theories that followed were not just about bringing down President Trump, but ending free speech online.

It’s no coincidence that the central conspiracy theory surrounding the 2016 election involves free speech or that the solution is internet censorship. The claim that Russian trolls and bots rigged the election has zero actual evidence behind it. But it’s a convenient tool for not only delegitimizing Trump, but the very idea of a free and open internet where anyone can say anything they choose.

Senator Ben Cardin, Rep. Jerry Nadler and other members of Congress compared the election influence conspiracy to Pearl Harbor. Rep. Jim Himes went even further, suggesting that it had eclipsed 9/11 by claiming that it, “is up there with Pearl Harbor in terms of its seriousness as a challenge to this country.”

What they’re really saying is that Democrats losing an election is worse than the murder of 3,000 people. It’s why they will oppose a terror state travel ban until Islamic terrorists start voting Republican.

And what did this greatest attack since Pearl Harbor consist of? Speech. On the internet.

After Kimberly Manor lost her husband to lung cancer, she was inspired to make a dramatic career change. Kimberly now owns and operates Moose Jooce in Lake, Mich., a “vape shop” that sells various electronic nicotine devices. These products use battery-powered coils to vaporize liquids, with differing levels of nicotine or none at all. Thus, vapers may inhale nicotine without the tar or other harmful chemicals in tobacco smoke, since there is no tobacco and no combustion. Scientific evidence suggests this is a much safer alternative to smoking.

Ms. Manor estimates that her business has helped more than 500 people quit smoking, most of them longtime smokers in their 50s or older. Yet the Food and Drug Administration is discouraging more such enterprises. In a regulation issued in 2016 known as the “deeming rule,” the agency ordered that vaping products would be subject to the same regulations developed for the cigarette industry under the Tobacco Control Act of 2009.

The deeming rule has been devastating to businesses like Ms. Manor’s. To give just one example, vape shop owners frequently experiment by mixing new flavors for the liquid “juice.” Now, each separate creation requires its own prohibitively expensive application for FDA approval, which means that vape shops have been forced to stop innovating.

There are many reasons to criticize the FDA’s action, but its most fundamental flaw—and the one that our legal foundation raises in three lawsuits on behalf of Ms. Manor and nine others—is that the rule was finalized by someone without authority to do so. The rule was not issued or signed by either the secretary of health and human services or the FDA commissioner, both Senate-confirmed officials. Instead, it was issued and signed by Leslie Kux, a career bureaucrat at FDA.

This isn’t the first time the FDA bureaucracy has exceeded its authority. HHS officials in prior administrations purported to delegate their rule-making power to the bureaucrats who held the position Ms. Kux now fills—and she has issued nearly 200 rules.

All these rules are invalid. The attempted delegation of rule-making authority to someone not appointed as an “Officer of the United States” violates one of the most important separation-of-powers clauses in the Constitution. CONTINUE AT SITE

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.”