Monday, August 20, 2018

Liberal Hypocrisy: White House & Don McGahn Attacked for Being Too Transparent

On Saturday, the New York Times published an expose on how White House Counsel and former Trump campaign counsel Don McGahn has been cooperating with the Mueller investigation and has given thirty hours of interviews.  Yet, instead of being praised for his cooperation and transparency, Mr. McGahn's character is being attacked by the "Gray Lady" in its ongoing efforts to undermine President Trump.

The Wall Street Journal's editorial board responded, pointing out that Mr. McGahn could have only cooperated with President Trump's permission:
The thesis of the New York Times story is that Mr. McGahn cooperated in a way that could hurt Donald Trump in order to protect himself and because he doesn’t trust the President. This fits the media narrative that Mr. Trump is covering up his collusion with Russia and his obstruction of justice, and thus Mr. McGahn must be scrambling to save himself. 
Yet lost in the resulting tempest is a crucial fact that appears to contradict this spin: Mr. Trump had to waive executive privilege for Mr. McGahn to cooperate with Mr. Mueller. . . . But as White House counsel Mr. McGahn represents the Presidency. He is a careful enough lawyer to advise Mr. Trump that agreeing to answer Mr. Mueller’s questions would waive executive privilege. And the Times reports that Mr. McGahn’s attorney, William Burck, said on the record that Mr. McGahn cooperated only after Mr. Trump waived any privilege claim.
Executive privilege is held by the chief executive - the President - and as with other legal privileges, only the holder of the privilege can waive it.  Unlike President Clinton when investigated by Ken Starr or President Obama's administration when investigated by Congress, President Trump has nothing to hide and is cooperating with the Mueller investigation, despite its problems and failure to return any evidence of wrongdoing by the President or his campaign after over a year of investigation:
This isn’t what you’d expect if Mr. Trump is leading a coverup. . . . Yet when Mr. Trump doesn’t invoke privilege for his White House counsel, he gets no credit. . . . Keep in mind that Mr. Trump’s lawyers cooperated extensively with Mr. Mueller for months, turning over tens of thousands of documents—also without claiming executive privilege.
The Wall Street Journal's editorial board pointed to the heart of the problem in the Times' misleading report - the effort to portray the Trump White House as fractured.  Mr. McGahn has been loyal to the President throughout his cooperation with the Mueller investigation:
Mr. McGahn has been one of the President’s most effective advisers—notably on judicial nominations. But some in and outside the White House resent his influence and might want to portray him as undermining Mr. Trump. The bottom line is that readers should remain skeptical about what is reported about Mr. Mueller’s probe, waiting to see the evidence he actually produces.
To see the double standard here, one must only imagine what the news stories would be were the political parties reversed.  The mainstream media would lament the waste of taxpayer dollars spent on a lengthy, unnecessary investigation by the Republicans and either applaud a Democratic administration for cooperating with it for the good of the country or defend the administration for not cooperating.

Friday, August 17, 2018

Manafort Trial Not About Trump or Russian Interference in 2016 Election

The trial of Paul Manafort has been frequently in the news the past few weeks, and to listen to the mainstream media, it would appear that the trial is about Mr. Manafort's crimes on behalf of President Trump during his brief time with the Trump campaign in 2016.  But as Hans von Spakovsky pointed out, the trial has nothing to do with President Trump, the Trump campaign, or alleged Russian interference in the 2016 election:
But when it comes to the mandate given to Mueller on May 17, 2017, we’ve learned absolutely nothing. Mueller was charged with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” 
But neither Gates nor any other witness at the Manafort trial has testified about the Russian election interference or any alleged collusion between the Trump campaign – or Trump himself – with the Russians. . . . All of the testimony at the Manafort trial has addressed events that occurred long before Manafort went to work for 2016 Trump campaign. The testimony has focused on Manafort’s and Gates’s activities as alleged “unregistered agents” representing the Ukrainian government starting in 2006. 
It would be absurd to argue that Manafort’s other clients in the 12 years since then are somehow to blame for any criminal activity he may have engaged in – and prosecutors aren’t even trying to point the finger at President Trump for these activities.
As Mr. von Spakovsky describes, the only connection between President Trump and Mr. Manafort's alleged misdeeds is how President Trump's opponents will try to attack him through his brief association with Mr. Manafort: 
If Manafort is found guilty of tax evasion and bank fraud, some will try to use his very brief association with the Trump campaign to tar the president. But such criticism would ignore two crucial facts. 
First, presidential campaigns are not law enforcement agencies. They have neither the capacity nor the resources to do detailed background investigations on the thousands of individuals who volunteer to work with a campaign. 
Second, Manafort appeared to be a successful, ethical businessman. Even the government – including the IRS, the FBI and our intelligence agencies – had no idea that he was allegedly engaging in any wrongdoing for a foreign government through an elaborate scheme of offshore bank accounts and shell companies, until Mueller’s office started investigating him. 
While the trial of Mr. Manafort is rife with political overtones, it is important that he not only receives a fair trial but also that the coverage of any evidence presented and the eventual verdict is accurate and not used as a political weapon through distorting the subject matter of the trial.

Thursday, August 16, 2018

Senator Leahy Goes to Fantasy Land

In today's Senate Judiciary Committee hearing, former Senate Judiciary Committee Chairman Patrick Leahy made the case for his needing to retire in a bizarre rant against “his friend” current Senate Judiciary Committee Chairman Chuck Grassley and the Senate Judiciary Committee over the nomination of Judge Kavanaugh.  Leahy talked about “wandering in the woods” and compared the hearing to his childhood love of “Alice in Wonderland.”  In other parts he made some outlandish claims that made him look like he was in some sort of fantasy woods created by Lewis Carroll.
One example.  Leahy said:
“When I was Chairman . . .[we] requested the full universe of Justice Kagan’s documents. . . .   We received 99% of them.”
As Chairman Grassley pointed out,
“The [Judiciary] Committee did not receive 99% of Justice Kagan’s record; we did not get her Solicitor General records.”
Leahy made all kinds of other accusations over the number of records turned over.  It is apparent that no number would be enough.

Putting aside the debate over numbers of documents, there is the more important debate over relevancy.  It seems all rational observers would agree the most relevant part of Brett Kavanaugh’s record for determining if Judge Kavanaugh is fit to be a Supreme Court Justice is his time as an appellate court judge. 

Among those who agreed with this rational standard in the past is Senator Leahy.  In 2009 during the confirmation hearing for Justice Sotomayor, it was Senator Leahy who said:
“In truth, we do not have to speculate about what kind of a Justice she will be because we have seen the kind of judge she has been.”
Sotomayor had one less year then Judge Kavanaugh on the Court of Appeals at the time of her confirmation (although more time as a judge).   It seems like 2018 Senator Leahy should listen to 2009 Senator Leahy and review Judge Kavanaugh’s judicial record.  If he left the woods of wonderland, he would realize that would give him what he needs. 

Wednesday, August 15, 2018

Supreme Court Term's Impact on Campus Free Speech

Charles Koch Institute's Senior Fellow for Free Speech and Toleration Casey Mattox, who spoke on campus free speech at the RNLA's National Policy Conference in April, described how three First Amendment cases from the Supreme Court's October 2017 term would impact free speech on college and university campuses.  First, on Minnesota Voters Alliance v. Mansky:
The Mansky decision means that universities must not only avoid viewpoint discrimination; they must affirmatively enact policies eliminating the discretion that could allow it. . . . In other types of government forums — for example, parade or rally permits on public streets or parks — the Supreme Court had previously required that the discretion of the decision makers must be “bridled” by fixed and objective criteria. A government’s failure to create these objective standards to limit the decision maker’s authority was itself unconstitutional because of the risk of viewpoint discrimination. 
Some attorneys have argued that this "unbridled discretion" doctrine is limited only to traditional public forums (such as public parks and streets) and does not bind universities. Thus, it was permissible for administrators to make recognition, funding, or other decisions on vague or unspecified criteria, and the burden remained on students to show that they had been discriminated against because of their viewpoint. . . . But the decision in Mansky eliminates any doubt that the unbridled-discretion doctrine applies in any forum, including those commonly found on campus. Universities will now have to ensure that administrators or student governments making decisions about student expression are guided by fixed, neutral, and objective criteria — protecting students from hidden viewpoint discrimination.
Second, Mr. Mattox writes of the impact of Janus v. AFSCME:
Public universities require students to pay hundreds or thousands of dollars per semester in “student activity fees.” . . . In Southworth v. Board of Regents, University of Wisconsin Systemthe Supreme Court rejected a First Amendment compelled-speech challenge to these mandatory fees. . . . After Janus, Southworth may be in question. It is noteworthy that the Court’s 49-page opinion, surveying its prior precedent, omits any mention of the Southworth exception from the rule that government may not force people to fund others’ speech. The Court’s strong decision in Janus against compelled funding of others’ speech, and overturning the Abood decision on which Southworth largely rested, may lay the groundwork for a new challenge to Southworth. Even if Southworth itself isn’t threatened, universities should examine whether their student-organization funding systems are really like the one upheld in Southworth. To the extent that a university’s student-fee allocation program directs these mandatory fees toward specific groups or tiers of student-group funding in ways that advantage certain views, they may be at greater risk. And, as noted above, Mansky at least places the burden on universities to demonstrate that they have strictly limited discretion over student-activity-fee allocations to make it more difficult for viewpoint discrimination to happen.
And finally, on NIFLA v. Becerra:
Some professional schools and degree programs have sought to impose as speech codes the professional-ethics codes developed to apply to members of those professions. These codes are often written broadly (e.g., prohibiting “unprofessional behavior”) by voluntary professional associations and not meant to be strictly applied by government. Speech codes such as these are routinely deemed unconstitutional when drafted by universities and applied to all students. Some colleges and programs have argued that they may nevertheless enforce a professional-ethics code against students in that particular program — including its limits on “unprofessional” speech. The Court’s virtually complete rejection in NIFLA of new First Amendment exceptions, including one unique to “professional speech,” should make it more difficult for institutions to justify these professional-speech codes under the First Amendment. 
The Roberts Court, particularly in the last term with the addition of Justice Gorsuch, has been a strong speech-protective Court.  Judge Kavanaugh has a strong record on free speech cases and will likely continue this trend when he is confirmed to the Supreme Court.  While the Court does not hear many campus free speech cases, mainly because universities' speech-suppressing policies are usually clearly unconstitutional and quickly dropped or invalidated once challenged, its First Amendment jurisprudence has many implications for free speech on campus.

Tuesday, August 14, 2018

Florida Election Supervisor Doesn’t Know Meaning of “Canvass”

Florida Broward County Election Official Brenda Snipes is zero for two today, as a Florida judge sided with the Florida GOP and has ordered for the election supervisor to change her ways in how she handles vote-by-mail absentee ballots. Through a declaratory injunction ordered Friday, Supervisor Snipes is prevented from “opening the mail-in ballots in secret or before the county’s three-member Canvassing Board meets to determine the ballot’s validity.”

The Republican Party of Florida declared: “the Court’s ruling helps protect the integrity of this year’s election process, not just for Republicans but for all voters in Broward County.”

In the 17-page ruling, the judge repeatedly stated it was an issue that Snipes did not know what the meaning of the word “canvass” and she could state why the court shouldn’t side with the Florida GOP. The judge stated:

“Defendant has failed to rebut Plaintiff’s entitlement to relief … and has even admitted to misunderstanding the meaning of the word ‘canvass.’”
It is concerning that in the second largest county with voter participation in Florida, the county Election Supervisor, who has held the position since 2003, does not know what “canvass” means and believed that her office was operating according to state and local laws.

This is not the first sign of incompetence or corruption shown by Snipes. In 2016, she broke the law by destroying ballots cast in the congressional primary between Rep. Debbie Wasserman Schultz and Tim Canova, prior to the required waiting period.

As Florida prepares for their primary elections and the midterm general elections in November, it is concerning that there continues to be fraud and blatant incompetence in election administration. The people should have the confidence their election officials are ensuring that elections are fair, open, and honest -- not that these entrusted officials are acting lawlessly, unjustly, and ineptly.

Monday, August 13, 2018

Judge Kavanaugh's Confirmation: Senate Democrats to Watch

With the confirmation hearings for Judge Brett Kavanaugh a little less than a month out - week of September 4th - political pundits are already putting out lists for possible Democrat Senators to keep an eye out for as possible swing votes. Here are a few to keep an eye on:

The Democrat Senators that supported Justice Gorsuch (Manchin, Heitkamp, & Donnelly):

Senator Manchin of West Virginia was the first to break ranks with his caucus to sit down with Judge Kavanaugh at the beginning of this month:

[Senator] Manchin bucked his party and announced he would meet with Judge Kavanaugh. Mr. Manchin is also one of a handful of Senate Democrats who have expressed openness to supporting Judge Kavanaugh despite a fierce campaign from progressive activists urging the Senate to reject Mr. Trump’s nominee...
Senator Manchin also cautioned fellow Democratic senators that all too quickly rejected Judge Kavanaugh's nomination mere moments after his formal announcement:
“I think it’s irresponsible to announce your position minutes after the nominee is announced,” Mr. Manchin said in a statement after the meeting. “I will not make a final decision on Judge Kavanaugh’s nomination until I complete a thorough and fair examination of his candidacy.”
As for Senator Heitkamp of North Dakota and Senator Donnelly of Indiana, they have largely been quiet on how they plan to vote.

Wildcard Democrats (Nelson, McCaskill, & Jones):

Senator Nelson from Florida is currently in the midst of a very tough re-election in a state that President Trump won in 2016. He recently appeared to back down from his initial opposition of Judge Kavanaugh, although as yet to declare how he plans to vote.

Senator McCaskill of Missouri, similarly, has yet to announce how she plans to vote but looks forward to reviewing Judge Kavanaugh's record.

A recent Fox News article suggested Senator Jones, from Alabama, could become one of these swing vote senators:
But one of the Senate’s newest members is emerging as a possible fourth Democratic vote who could consider backing President Trump’s high court pick in the end... Alabama Sen. Doug Jones, who was elected to Attorney General Jeff Sessions’ former seat in December, represents a state that voted for Trump by over 62 percent. This alone has made Jones somewhat of a wild card in the Democratic caucus.

The RNLA will continue to keep our members and readers up-to-date on the news surrounding Justice Kavanaugh's confirmation process. To sign the RNLA letter of support for Judge Kavanaugh, please click here. For the latest news, also visit, our Facebook, and our Twitter.

Friday, August 10, 2018

Kavanaugh Hearing Set for September 4

Judge Brett Kavanuagh’s confirmation hearing is set to begin on September 4 as announced by Judiciary Chairman Senator Chuck Grassley today.
Grassley predicted that the hearings will span three or four days, starting with opening statements on Sept. 4 and questioning on Sept. 5.
“As I said after his nomination, Judge Kavanaugh is one of the most respected jurists in the country and one of the most qualified nominees ever to be considered by the Senate for a seat on our highest court,” Grassley said in a statement. “My team has already reviewed every page of the over 4,800 pages of judicial opinions Judge Kavanaugh wrote, over 6,400 pages of opinions he joined, more than 125,000 pages of records produced from his White House legal service, and over 17,000 pages in response to the most comprehensive questionnaire ever submitted as a nominee.”
“He’s a mainstream judge," Grassley added. "He has a record of judicial independence and applying the law as it is written."
Despite liberals claims of rushing or anything similar, Kavanaugh’s hearings will be later than the most recent Democrat nominees and the overall average:

Please sign the RNLA’s letter support Judge Kavanaugh here.  RNLA will continue to provide information until the hearing.