Tag Archives: Legal Shenanigans

November 10, 2016 · 1:30 am

Top 10 side effects of Trump’s victory

The great news just keeps on rolling in after Tuesday.  Here are some great (and some not so great) side effects that we can look forward to:

10.  The Clinton Foundation will close up shop, since with no influence to peddle no one will donate to it.

9.  The media will try to build momentum to elect Hillary Clinton Speaker of the House for the sake of national unity (and since she won the popular vote, dontcha know).  President Trump and Vice President Pence will then have to avoid being in the same place for four years.

8.  We will never hear the name Alicia Machado again.  Or Sidney Blumenthal, Robbie Mook, or Jennifer Palmieri.  Or Huma Abedin (unless she ends up in the dock or in the pages of the Federal Register as having been granted a pardon).

7.  Ivanka Trump will be America’s first woman president, maybe around 2028 (while the left decries the Trumps for trying to create a dynasty).

6.  Democrats will move to abolish the electoral college.  Democrats will rediscover the majesty of the filibuster, the perniciousness of the presidential executive order, and the importance of checks and balances.

5.  Merrick Garland will resign his judgeship, join the Harvard Law School faculty, and become a bitter old man writing op-eds and appearing on MSNBC panels relentlessly attacking President Trump.  He may run for Senate and prove to be just as leftist as Elizabeth Warren.

4.  The bubble for firearm and ammunition company stocks will end (though the Soros-funded rioters may keep up demand under they peter out).

3.  Chelsea Clinton will run for office (the only way to prevent #10).  Kirsten Gillibrand will lose her status as liberal icon and be pressured to make way for Chelsea to take her seat.  Ditto for Richard Durbin once Michelle Obama decides that she’s entitled to a senate seat too.

2.  James Taranto will grudgingly have to retire his “we blame George W. Bush meme.”  Glenn Reynolds will happily have to retire his “TAXPROF ROUNDUP: The IRS Scandal, Day XXX” meme.  CBS will finally be able to cancel Madam Secretary, which was presumably created as an in-kind donation/hagiography to the Clinton campaign (every time you saw a promo for the show, you were supposed to think of Hillary Clinton).

1.  The Trump Organization will have to change its name back to the original German Trumpf to avoid any conflict of interest.

 

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September 10, 2016 · 10:24 pm

Bill to allow Americans to sue Saudi Arabia for terrorism is against the rule of law (that it passed unanimously is a telltale sign)

It’s odd that we side with President Obama as he is facing the first veto override of his term.  Though the fact that the bill passed both the House and the Senate unanimously is a hint of its perniciousness.

The bill, called the Justice Against Sponsors of Terrorism Act (JASTA), would allow citizens who can convince a jury that they were victimized by terrorism to sue governments that they believe contributed to the terrorist acts.  We agree with the high-minded reasons that both the Obama Administration and some of the Republicans’ best legal and foreign-policy minds put forth in illustrating the bill’s dangers:  it undermines sovereign immunity, could prompt retaliatory lawfare from other countries, and  could place Americans abroad at risk of being detained by countries where the divide between civil and criminal prosecution is not as clear as in America.

We also fret that—while we are not condoning our supposed allies like Saudi Arabia in creating the environment for and directly supporting attacks on the U.S.—subjecting more defendants to the whims of the U.S.’s tort system is not the definition of justice.  Supporters of the bill reflexively cry that “it’s not about the money,” but we’re sure that the tort bar doesn’t see it that way.

The lawsuit industry undermines the U.S. economy every day via “jackpot justice,” in which it’s not that hard to employ emotionally-charged arguments to convince juries that some faceless, deep-pocket foreign defendant should pay up.  The preponderance-of-the-evidence standard on such civil matters is a dangerous substitute to deal with complex issues that should be left to the international political process.

The bill, while not unconstitutional, violates the spirit of the American constitution’s visionary prohibition of Bills of Attainder and ex post facto laws.  JASTA strikes us as a ham-handed attempt to scapegoat for imprecise reasons a defined boogeyman after the fact—a a sophisticated form of mob rule that these constitutional provisions were designed to deter.

Most bills that pass Congress unanimously are trivial, with the only down-side being wasted legislative resources.  When they are not trivial, such laws almost always increase government and erode liberty, as the political class generally agrees on these values as opposed to their converses.  Unanimous laws generally fit the pattern of benefiting from emotional resonance—as in the case of JASTA—and being seen as having little down-side.*

JASTA is not trivial and carries significant down-sides, though it does fit the general pattern of feel-good unanimous legislation and all of its ills.

*We would like to see a historian write a book on unanimously-passed legislation and the dissenters (like former Rep. Ron Paul (Tx.)) who have stood alone against them.  Such a work would certainly be filled with anecdotes that would educate and often amuse political junkies.

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September 1, 2016 · 7:32 pm

What October Surprise can we expect for Trump?

The mainstream media, especially the New York Times, Washington Post, and CNN, has been getting more hysterical each day during Donald Trump’s campaign.  Their coverage has probably hurt Trump at the margins, though the returns to the manufactured outrage are diminishing.  The conservative “never-Trump” crowd is not much more credible or insightful.

There is no doubt that these outlets are investing heavily to dig up whatever they can, while the bar for outrage among persuadable voters grows higher and the MSM increasingly finds itself shouting inside an echo chamber inhabited by its already-virtuous anti-Trump readers.  What might they come up with?

We previously speculated that the media would pursue the tried-and-true strategy of linking Trump’s family to the Nazis, however dubious any connection might be.  No doubt they are soliciting any leaks they can find about Trump’s health and finances.

It’s astonishing that someone who has employed thousands of people over the years in the inherently rough-and-tumble realm of urban real estate development  hasn’t been tarred with claims of unlawful business practices.  (A few stories about the visa statuses of Melania Trump or models he’s engaged don’t amount to much.)  No alleged unpaid wages, illegal employees, discrimination, shady permits, safety code violations, or, the holy grail, sexual harassment by some Trump office manager?  At a minimum, no disgruntled former employees who will complain about what a horrible boss he is?   (The public seems to understand that a few lawsuits and bankruptcies among thousands of real-estate ventures are normal in America.)  In reality, all of the evidence suggests that Trump is an exemplary businessman and employer.

We are holding our breath awaiting whatever scurrilous charges the press comes up with.  Perhaps it will be the conservative media, which is less lazy and even more motivated to stop Trump than is the mainstream media, that strikes hardest.

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April 28, 2016 · 4:42 am

The Hastert case seems like a series of injustices

Former Speaker of the House Dennis Hastert (R-Ill.) received a 15-month sentence in Federal prison for sexual abuse of a young man.  No, it was for laundering excessive amounts of ill-gotten cash.  No, actually, it was merely for “illegally structuring” bank withdrawals to avoid breaching limits that would have required his bank to report the activity to the government.

Note that Hastert is guilty of “illegally structuring” withdrawals, not deposits.  There are laws governing reporting of deposits, to protect against money laundering and tax evasion, which arguably serve a legitimate public policy purpose.  But in this case, Hastert was dealing with his own money.  There was not necessarily anything illegal about what he was doing with the funds; it’s unclear whether he was a blackmail victim, and we don’t expect the Feds to investigate that.

It’s outrageous that there are laws on the books that impose conditions on withdrawing one’s own money, and perhaps even more outrageous that there are laws on the books that criminalize “structuring” withdrawals to avoid running afoul of the underlying laws that are ridiculous to begin with.

Moreover, Hastert must now register as a sex offender, even though he was not convicted of any sexually-based offense.  He presumably agreed to register, as well as to receive some sort of “sex offender treatment,” as part of a plea agreement, but it strikes us as inappropriate that the judge in the case proclaimed, “The defendant is a serial child molester.”

We will insert the compulsory “we don’t condone the sexual abuse of which Hastert is accused, and if he did it, he deserves to be punished.”  Regardless, we consider it a miscarriage of justice that the government can use the threat of long jail time under preposterous financial laws to coerce a defendant to admit conduct that they couldn’t prosecute because of statutes of limitations, and then, as a bonus, the judge can pontificate from the bench on matters not tried.

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December 21, 2015 · 9:01 am

Media tropes on immigration obscure legitimate debate about trade-offs

We know, you could substitute virtually any issue for “immigration” in the title and the story would be valid.  But the mainstream media’s (and Republican establishment media’s) desperation in trying to stop Donald Trump have brought out the worst in our discourse.

The Washington Post cites a couple of legal scholars in the first few paragraphs of an article headlined “Experts: Trump’s Muslim entry ban idea ‘ridiculous,’ ‘unconstitutional,'” but then—in a juxtaposition certainly worthy of James Taranto’s “Two papers in one!” meme—adds, well, actually, it wouldn’t be unconstitutional:

Barring Muslims who are not U.S. citizens from entering the country may not violate U.S. law in the same way, the experts said, because the Constitution’s protections generally do not apply to people outside the nation’s borders.

Duh.

The Post article then cites a partial precedent, the Chinese Exclusion Act of 1882, which was not found unconstitutional.  The article also repeatedly refers to “principles of international law and agreements the U.S. has signed with other nations” without specifying any of them.  One critic asserts, “I’m sure it would violate innumerable treaties if we suddenly started banning citizens of NATO countries, of Southeast Asian countries.”  Tell that to a Turk or Thai who has been denied a visa despite their countries’ close alliances with the U.S.

A point that the article, and most like it, fail to make is that the U.S., like any sovereign nation, has the right to grant or deny a visa to any individual, for any reason at all, and also to deny entry to anyone attempting to travel to the U.S., including those from countries whose nationals do not require a visa.

Meanwhile, Ben Shapiro, writing in The Daily Wire, brings out various straw-man arguments about American military members (which he rightly corrects in a later update clarifying that Trump was not referring to barring citizens) in characterizing Trump’s stance as “desperate.”  Um, Mr. Shapiro, Trump is leading in the polls, and his support has only increased since he called for more scrutiny of Muslims attempting to immigrate to the U.S.  The idea of trying to ban all Muslim immigration has wide support in polls.  Trump has made a policy proposal from a position of strength, not desperation.

Donald Trump did not call all Muslims terrorists.  He did not call for a database of Muslims living in the U.S., as the media was quick to accuse him after he didn’t forcefully reject a reporter’s suggestion to that effect.  Banning Muslim visitors is not at all like the internment of American citizens of Japanese and other origins in Axis countries during World War II, a comparison that the media has been quick to breathlessly make.

Attempting to ban all Muslim immigrants may or may not be a good idea.  It may or may not violate various treaties.  It would likely harm America’s standing in the world, victimize innocent people, and, above all, not be practical to implement.

However, none of these is reason to dismiss the merit of the proposal out of hand.  It wouldn’t be that difficult to bar foreigners who are obviously Muslim (Muslims often have names identifying them as such, as many countries list religion on their passports), who come from predominantly Muslim countries, and/or whose passports show visits to Syria, or Iraq, or Turkey (the gateway to ISIS-controlled territory).  Obviously such a ban would not catch everyone who is a threat.  We are not necessarily endorsing any such restrictions.

The real problem with the discussion about Trump’s proposal to ban Muslims from visiting the U.S. is that very few commentators acknowledge (1) we are at war and (2) there are always trade-offs in policy decisions.

Almost no one—including, we would venture to guess, Donald Trump—would like the idea of banning people of a certain religion from entering the U.S. in principle.  Plenty of Muslims contribute to American society; want to visit as tourists, students, or businesspeople; and wish no harm on the country.  However, since there is a significant population of Muslims who consider themselves at war with the U.S., we are right to consider trade-offs.  President Obama or the pontificators calling Trump’s idea “ridiculous” have not addressed the question of how many innocent Muslims can reasonably be barred the privilege of traveling to the country in exchange for keeping the country safe from terrorists.

 

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June 27, 2015 · 11:50 pm

How long will it be before the Fourteenth Amendment is deemed to prohibit “hate speech”?

Justice Kennedy’s opinion in Obergefell v. Hodges finding a Constitutional right to gay marriage doesn’t really bother to cite a legal justification, instead relying on florid exaltations of “love, fidelity, devotion, sacrifice, and family” and an aw-shucks conclusion that laws against gay marriage “burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.”  His nominal Constitutional reference point is the Fourteenth Amendment, that contemporary cannon in which all manner of federally-provided goodies are loaded and splayed about the populace.

Suppose a future Congress were to pass a law criminalizing “hate speech.”  Such a law would, contrary to the willful understanding of much of our popular culture, be unconstitutional, at least as of June 25, 2015.  However, if a respondent (say, a future Democratic Solicitor General) defending such a law were to assert that “hate speech” uttered by a hateful hater effectively prevented the victim from enjoying her civil rights, or from fully participating in society—which is the position of many universities, the NAACP, and plenty of others on the mainstream left—then couldn’t the Supreme Court uphold the law under the same principles as the Obergefell decision?

If the First Amendment to the Constitution protects hate speech, Justice Kennedy might hold, then the First Amendment itself “burdens the liberty of minorities subjected to hate speech, and it must be further acknowledged that it abridges central precepts of equality.”

Consider another passage from the Obergefell decision:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

Unlike in the case of the desire among gay people to get married, our founders did understand the concept of speech that would offend people and explicitly decided that the value of free speech outweighs the consequences of hurt feelings.  First Amendment rights in the U.S. are generally not subject to the left’s beloved concept of “balancing tests” (issues related to national security are an exception), but Kennedy’s fuzzy language leaves much to the imagination as to how a future Court might decide to construe liberty.

Other countries that have historically cherished free speech have carved out exceptions, such as the criminalization of “racism” in the U.K. or of denial of the Holocaust in France.  The fact that America’s democratically-elected representatives have attempted many abridgments of free speech over the years certainly proves that there exist ongoing differences of opinion on “the extent of freedom in all of its dimensions.”

Now that the Supreme Court has again interpreted “a claim to liberty” as the right to receive benefits from the government as a married gay couple—as opposed to the founders’ notions of liberty as freedom from coercion by the government—it does not seem too much of a stretch to think that a future Court acting on this precedent would discover that an American in a protected class demanding protection from hateful speech is entitled to rectification of a similar “claim to liberty” that must be balanced with free speech rights.

Such a purported victim need only claim that his Fourteenth Amendment Due Process and/or Equal Protection rights have been violated in some vague manner to assert the primacy of that Amendment over the speaker’s rights to free speech.  After all, the Fourteenth Amendment was passed subsequently to the First, so there is no reason why the former could not be deemed to supersede the latter.

Justice Thomas notes in his dissent, “inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.”

By the way, it is not that difficult to imagine extending the same argument to require a balancing of Fourteenth Amendment rights with those protected by the Second Amendment.  E.J. Dionne, writing presciently in the Washington Post on June 24, wants a new campaign “protecting the rights of Americans who do not want to be anywhere near guns.”  One wonders if he had dinner with Justice Kennedy a couple of weeks ago to trade notes?

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December 2, 2014 · 3:19 pm

UPDATE: NCAA’s treatment of Penn State was a sham

Joe Nocera of the New York Times reports that Penn State knew that it didn’t have any jurisdiction to penalize Penn State’s football program as a whole for the horrific private actions of former coach Jerry Sandusky.

We lamented the punishment at the time as an affront to the “rule of law,” so to speak, and unfair to the team.  Naturally, liberals in the media (including Nocera, as he decently admits in the current column) enjoyed lambasting the university’s “football culture” that supposedly contributed to the abuse.

It is fair to criticize the Penn State administration for enabling Sandusky, but it does not follow that the NCAA should punish the players on the field.  It’s a bit too late for the students, players, and fans, but at least we can hope that the NCAA applies more rational oversight in the future.

 

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July 28, 2012 · 6:00 pm

NCAA acting as judge, jury, and executioner: What could possibly go wrong?

Many quarters praised the NCAA for not wasting time with its own investigation of the Sandusky affair, which would inevitably take forever and cost a fortune, but rather relying on the report prepared by Louis Freeh’s company.  However, the NCAA’s purview is entirely different from the university’s itself (and, of course, from those of a civil court or criminal prosecutor):  “The NCAA’s job is to investigate whether Penn State broke its rules and whether it gained a competitive advantage in doing so”—i.e., not the same objective as the Freeh report.

For that matter, what is the NCAA’s interest in this case, beyond any interest of the university itself, the criminal justice system, or the tort lawyers?  None.  Sandusky’s conduct and the corruption at Penn State were horrific, but none of this is alleged to have impacted any Penn State students or anything impacting the competition on the field.  Would the NCAA have similarly intervened if Sandusky shot up a shopping mall while wearing his PSU hat?

The NCAA’s punishment was a gross violation of “the rule of law,” such as there is one that pertains to its relationship with member universities.  It seemed to invent the rules that the university broke and the appropriate punishments as it went along.  Its Orwellian punishment—pretending past Penn State victories (but not losses, apparently) didn’t exist—seems to have nothing to do with the crimes committed.

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July 23, 2012 · 6:00 pm

The likely ripple effects of Penn State

Sadly, the bureaucratization of risk management that Harvey Silverglate fears will become more prevalent in higher education.

This happens in large companies, too.  Most companies have “risk” or “compliance” czars (not to mention the human resources, accounting, and tax bureaucrats who impose their own constraints) who have to monitor, in very intrusive ways, all business activities to understand the company’s exposure to various forms of liability that can literally destroy the company.

The problem is that these risks do not, for the most part, derive from market competition, but rather from government regulations and from the tort bar.  The worst part is, corporate executives generally side with the “compliance” bureaucracy over the business line if there is a conflict—when the bureaucrat says, “you can’t do that business deal for XYZ reason,” the business manager finds it hard to argue against this claim.  Blanket restrictions substitute for normal business considerations—like judgment, balance, and common sense.

One example of this from our background was a decision that the CEO of our large professional services firm made saying that, due to the Foreign Corrupt Practices Act, we would simply not do work in Indonesia.  Sure, Indonesia is a minefield, but isn’t it a bit draconian to simply ban the pursuit of all work in such an important market?  Surely a company comprised of such intelligent, seasoned businesspeople could use its judgment to pursue business there in a viable way?

This is a typical example of how conservative large companies have to be.  In fact, large organizations—be they corporations or universities—look awfully like government organizations.  This is no accident; and is another success by the left in transforming our society toward a government-centered one.

The next discrete step in this convergence of large companies and government is government ownership of some companies.  We could easily see “Big 4” accounting industry becoming nationalized the next time we see an Enron-type scandal:  these firms perform, the argument will go, an essentially public service—making sure that the investing public (including, by the way, many public or quasi-public investment funds)—so their functions should be provided by the wise, benevolent government.

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June 25, 2012 · 6:00 pm

Jonathan Turley: Pack the Court. . . with me!

So, it’s fair to suppose that Jonathan Turley is implying that the Supreme Court should include “clear intellectual leaders in courts, the bar and academia” like, ahem, Jonathan Turley?

H/T: Instapundit

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