Weintraub's Personal Staff Exhibits Bias Against Trump and Republicans

(This is the second in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the third is here, and the next installments will be posted in the next few days.)

Commissioner Weintraub's Personal Staff Routinely Trolls President Trump and Criticizes All Things Republican

Since President Trump took office, Weintraub's personal staff has been tweeting almost daily invective about President Trump and Republicans on the Twitter account altFEC, self-described as "The unofficial Resistance team of the U.S. Federal Election Commission." "Resistance" means resistance to the Trump Administration.  Consider a few examples of the kind of deep enmity and prejudice expressed toward President Trump:

• Gleefully: "Mr. Art Of The Deal got his ass kicked by the D.C. City Government"

• Directed at a Donald Trump tweet on legal issues likely to be addressed by the FEC:  "Once this is over, however it ends, we’re going to wonder, 'Why did we put up with this nuttiness for so long?'"

• Retweeting James Comey's criticism of President Trump on issues likely to come before the FEC:  "Thought experiment: Make a list of all the public figures in this country and around the world the current president has criticized. Ask yourself: 'Why is Putin missing from the list?' No responsible American should ever stop asking, 'Why?'" 

• Mocking Trump:  "Where are Hillary Clinton's emails? Mr. Trump said.  Oh, here's one.  [faux email from Hillary Clinton to Donald Trump]  Resign, you treasonous clown." 

• Criticizing Trump:  "Oddly, as his behavior gets more erratic & overtly pro-Russian, it may actually be a sign that Trump is *not* a Russian agent. Because at a certain point – one already passed – you would think his handlers would say, 'Yo, dude, tone it down a little. You’re being too oobvious [sic].'” 

• Prejudging alleged payments by Trump to Cohen as undisclosed campaign expenditures, a matter likely to come before the FEC:  "So, the payments Trump made to Cohen to cover the #Stormy payoff included money for “a few other situations that might have been considered campaign expenses,” Giuliani tells @costareports. Why weren’t *these* expenses disclosed? https://t.co/lKJFLA1fbA" 

• Promising Trump detractors to conduct private investigations of their secret complaints.

• Exhorting cable carriers to drop Fox News -- a news channel Commissioner Weintraub concluded broke the law by hosting a Republican debate in 2016:  "Here's a question. The more people watch #FoxNews, the less well-informed they are about basic facts. Arguably, FOX is tearing at the fabric of our democracy. They have a 1st Amendment right to exist, but not to be carried by cable companies. So: Why do cable companies carry it? https://t.co/0Ttqvrl5EQ"   

The person responsible for this anti-Republican venom is none other than Weintraub's confidential counsel, Tom Moore, who was publicly identified as AltFEC by Rudy Takala of The Hill on his Twitter feed on February 26, 2017.  People close to the Commission confirm that Weintraub is aware of Moore's anti-Trump crusade and approves of his activities.  According to one source, Weintraub has been known to defend Moore's right to express his anti-Trump hostilities (anonymously!) toward the very people who are the subject of FEC enforcement authority by invoking the First Amendment -- a constitutional provision she rarely acknowledges when supporting enforcement against other citizens.

How can Commissioner Weintraub's office be viewed as fair, neutral, impartial when such nasty ad hominem attacks at President Trump are being published by her personal staff?  It simply cannot. 

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.

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.

Ruth Marcus' Partisan Analysis of the Steele Dossier

Ruth Marcus of The Washington Post needs either a law degree or a course in logic if she intends to comment intelligently on the legal issues presented in the Mueller probe.  In this video commentary, Ms. Marcus, sounding like Edith Bunker, strains the law and principles of logic to argue that Donald Trump, Jr. committed a crime by engaging in a conversation with a Russian lawyer but Hillary Clinton did nothing illegal by concealing campaign expenditures to pay Christopher Steele to reach out to Kremlin sources for dirt on Donald Trump, compiling that foreign-derived information to paper, and then shopping that information throughout the media corps to influence the outcome of the presidential election.

Here's Marcus’ argument:  

In one case, Trump’s, an emissary of a foreign government – have I said that enough? – foreign government – came to you to offer you dirt on your opponent because the foreign government, it was said in the emails, wanted to see you elected.  In the other case [Clinton’s] a campaign was doing actually, as the President has said, what campaign’s generally do.  They investigate their opponents. There is no rule that says if you investigate your opponent you can’t make overseas phone calls, you can’t talk to overseas sources.  You are allowed to collect information.  You are allowed to pay somebody to do that collection.  But asking for it is really very different from being the ‘if it’s what you say I love it, bring it on attitude’ that the Trump campaign had towards information that as far as it knew and was told was being peddled by the Russian government.  Big difference!  

Where’s the logic in that distinction?  If you take a meeting to listen to information being peddled by a foreign government representative you are a criminal, but if you conceal an expenditure to a foreign citizen (Steele) to “make overseas phone calls” to Kremlin-linked sources and then distribute that information to American press outlets like The Washington Post to influence the election, that’s different?  Marcus’ argument makes no sense.

Mr. Mueller should listen closely to the logical errors one must commit in order to contrive a crime here.  Mere conversations become “things of value.”  But one conversation is a crime, because your name is Trump.  Other conversations, “overseas phone calls,” are not crimes, because your name is Clinton. 

Meanwhile, Ms. Marcus, and presumably Mr. Mueller, will turn a blind eye to Clinton’s knowing and willful concealment of her campaign expenditure to Christopher Steele and Clinton’s knowing and willful peddling of the Steele opposition research report, containing information from Kremlin-linked sources, from American media to the FBI and federal courts.

Resources on Nomination of Judge Kavanaugh to Supreme Court

Yesterday evening, President Trump announced that D.C. Circuit Judge Brett Kavanaugh is his nominee to be the next Associate Justice on the U.S. Supreme Court.  During his speech in the nomination announcement, Judge Kavanaugh described his judicial philosophy:

Judge Kavanaugh: "My judicial philosophy is straightforward: a judge must be independent and must interpret the law and not make the law. A just must interpret statutes as written, and must interpret the Constitution as written."

— RNLA (@TheRepLawyer) July 10, 2018

Judge Kavanaugh's Jurisprudence

• Introduction to Judge Kavanaugh's judicial record, by Ed Whelan
• Wall Street Journal's Editorial Board: "A Justice with a Record"
• Brett Kavanaugh Said Obamacare Was Unprecedented And Unlawful (Prof. Justin Walker)
• Judge Kavanaugh: Interpretive Principles as a Way of Life (Prof. Jennifer Mascott)
• Rejects Agency Overreach
• Judge Kavanaugh’s Record Against the Administrative State (Ed Whelan)
• Cabining the Chevron Doctrine the Kavanaugh Way (Prof. Jeffrey Pojanowski)
• Judge Kavanaugh has overruled federal agency action 75 times.
• In White Stallion Energy Center LLC v. EPA, Judge Kavanaugh rejected EPA’s efforts to impose massive emissions regulations without considering costs. In a 5-4 decision authored by Justice Scalia, the Supreme Court agreed.
• In Coalition for Responsible Regulation v. EPA, Judge Kavanaugh argued in dissent from denial of rehearing en banc that the Obama EPA’s burdensome greenhouse gas regulations for power plants exceeded its authority and that courts should “not lightly conclude that Congress intended” to “impose enormous costs on tens of thousands of American businesses, with corresponding effects on American jobs and workers.”  In a decision authored by Justice Scalia, the Supreme Court agreed.
• In EME Homer City Generation v. EPA, Judge Kavanaugh held that the Obama EPA’s crossstate air pollution rule was unlawful and imposed excessive regulatory burdens on the states.
• Respects First Amendment Rights
• Institute for Free Speech's analysis of Judge Kavanaugh's First Amendment jurisprudence: Part 1 (campaign finance), Part 2 (campaign finance), Part 3 (pro-speech opinion on protesters' rights), and Part 4 (pro-speech dissents in Communications Act cases)
• In U.S. Telecom Ass’n v. FCC, Judge Kavanaugh dissented from denial of rehearing en banc in a case upholding net neutrality. Judge Kavanaugh argued that the net neutrality rule exceeded the FCC’s authority and violated the First Amendment, arguing that “the Government must keep its hands off the editorial decisions of Internet service providers.”
• In Emily’s List v. FEC, Judge Kavanaugh struck down FEC regulations that limited independent political spending by non-profit organizations, ruling that the regulations violated the First Amendment “right of citizens to band together and pool their resources . . . in order to express their views about policy issues and candidates.”
• Mandates Accountability for Independent Agencies
• In PHH Corp. v. CFPB, Judge Kavanaugh concluded that the structure of the CFPB—whose single director wields massive power but cannot be removed by the President except for cause—impermissibly invades the President’s power to supervise the Executive Branch. He noted that independent agencies “pose a significant threat to individual liberty and to the constitutional system of separation of powers.”
• In Free Enterprise Fund v. PCAOB, Judge Kavanaugh concluded that provisions of the Sarbanes-Oxley Act insulating the PCAOB from presidential control by making its members removable for cause only by the SEC violated the Constitution.  In a 5-4 opinion written by Chief Justice Roberts, the Supreme Court agreed.

Personal Details

Judge Kavanaugh is the single most qualified person in the country to serve on the Supreme Court. His credentials are impeccable. He currently sits on the D.C. Circuit—the “Second Highest Court in the Land”—and serves as the Samuel Williston Lecturer in Law at Harvard Law School. He graduated from Yale Law School and clerked for Justice Kennedy.

Judge Kavanaugh has a proven track record as the type of jurist that President Trump has promised to put on the Supreme Court. With over 300 published opinions, what you see is what you get: a judge who will apply the law as written and enforce the text, structure, and original understanding of the Constitution.

Judge Kavanaugh’s respect for people threatened by government overreach has demonstrated itself again and again, and he has often rejected attempts by the federal government to impose onerous regulations on private citizens.

Judge Kavanaugh is a true “judge’s judge.” He’s a thought-leader among his peers on the appellate courts and deeply respected by the Supreme Court. The Supreme Court has endorsed his opinions more than a dozen times, including Kavanaugh dissents that have become the law of the land. His opinions are regularly cited by courts across the country. Of his 48 clerks, 39 have gone on to clerk at the Supreme Court. And one of his clerks (Britt Grant) is even on the President’s list of potential Supreme Court nominees.

Judge Kavanaugh is active in his community. He coaches CYO (Catholic Youth Organization) basketball, acts as a reader at his church, serves meals to needy families, and tutors children at local elementary schools.

·         

Reactions to This Excellent Nomination

• The RNLA's press release.
• WHAT THEY ARE SAYING:
 Judge Kavanaugh’s Record On The Bench “Noteworthy For Its Skill And Conservatism” And “Pragmatic Approach”
• Senate Majority Leader Mitch McConnell:

I look forward to meeting with Judge Kavanaugh and to the Senate’s fair consideration of his nomination, beginning with the work of Chairman Grassley and the Judiciary Committee. This is an opportunity for Senators to put partisanship aside and consider his legal qualifications with the fairness, respect, and seriousness that a Supreme Court nomination ought to command. 

• Senator Richard Shelby:

President Trump has made an excellent choice in nominating Judge Kavanaugh to the Supreme Court.  He has impressive credentials, and I look forward to meeting with him to further consider his qualifications and commitment to upholding our Constitution as it is written.  This nomination is one of the most important items that we will consider this year.  I am hopeful that Judge Kavanaugh’s confirmation process will be fair and timely.

• Mitt Romney:

Esteemed by his colleagues, faithful to the Constitution, a record of thoughtful decisions, and already confirmed for the DC Circuit; Brett Kavanaugh has the right stuff.

• "A Liberal’s Case for Brett Kavanaugh," The New York Times by Yale Law Professor Akhil Reed Amar: 

The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.

In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh. 

The RNLA looks forward to the Senate's careful consideration of Judge Kavanaugh's extensive record and prompt confirmation of this extremely qualified nominee.  While the Democrats were engaging in character assassination against the nominee before his name was known, they cannot attack Judge Kavanaugh's impeccable credentials.  

Follow the RNLA on this blog, Facebook, and Twitter for the latest news and analysis of Judge Kavanaugh's record and nomination.

(This post will be updated.  Last update: 7/10/2018 at 9:00 AM.)

Only Sure Thing on SCOTUS Monday Is a Democrat Meltdown

Next Monday night a future Supreme Court Justice will be revealed to the public at 9 p.m. While the rumors are it will be either: Amy Coney Barrett, Brett Kavanaugh or Raymond Kethledge, there is one thing we know for sure: Democrats will go ballistic. So before the good news on Monday, we thought we would knock down some of the Democrats' attacks against any Supreme Court nominee from a Republican President.

1.  The nominee must pledge to a view on Roe v. Wade in order to be confirmed.  We will let liberal icon Justice Ruth Bader Ginsburg handle this one:

“You are well aware that I came to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Judges in our system are bound to decide concrete cases, not abstract issues; each case is based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives choose to present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”(U.S. Senate Judiciary Committee, Hearing, 7/20/1993)

And no less than Senate Minority Leader Chuck Schumer agreed:

 “There is a grand tradition that I support that you can't ask a judge who’s nominated for a -- or a potential judge who is nominated -- for a judgeship about a specific case that might come before them.” (Sen. Schumer, Press Conference, 2/7/2017)

2. But if you want to talk about issues, even there Democrats are not telling the truth.  Let's talk about the left's efforts to rally their base by saying Obamacare will be repealed:

DEMOCRATS: President Trump’s nominee could overturn the Affordable Care Act.

REALITY: Justice Anthony Kennedy voted to strike down the Affordable Care Act. Even if the same case were to come before the Court, and Justice Kennedy’s replacement voted the same way, the law would still be upheld, because the same five-Justice majority that upheld the law is still on the Court.

3. Led by Senator Schumer, Democrats are saying the nominee should not be considered in an election year after Republican Leader McConnell did not schedule a vote in 2016 after Justice Scalia passed.  From the Washington Post:

But here’s the rub: the Republican position, whether you disagreed with it or not, clearly was based on the fact that it was a presidential election year. Here’s Senate Majority Leader Mitch McConnell on ABC’s “This Week” on March 20, 2016:“The American people are in the middle of choosing who the next president is going to be. And that next president ought to have this appointment, which will affect the Supreme Court, for probably a quarter of a century.” . . .
Bottom line: it’s pretty clear the debate in 2016 revolved around nominations made in a presidential election year. Democrats are simply spinning a false narrative.

The Democrats are going to attack any nominee from President Trump. The attacks will not be based on the nominee’s record or even well-grounded in reality. President Trump’s list is outstanding and any nominee from it would be committed to the rule of law. RNLA will be working to help win the public argument to confirm the nominee in the coming weeks.

Justice Anthony Kennedy Retires From The Supreme Court

In what turned out to be one of the most important days in American history, Supreme Court Associate Justice Anthony Kennedy announced his resignation from the Bench after more than thirty years of service. The 1987 appointee of President Ronald Reagan hand delivered President Donald Trump a resignation letter that stated: 

My dear Mr. President,   

This letter is a respectful and formal notification of my decision, effective July 31 of this year, to end my regular active status as an Associate Justice of the Supreme Court, while continuing to serve in a senior status, as provided in 28 U.S.C 371 (b). 

For a member of the legal profession it is the highest of honors to serve on this Court. Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises. 

Respectfully and sincerely,  

Anthony Kennedy

The RNLA immediately issued the following press release:

The Republican National Lawyers Association (RNLA) honors Supreme Court Justice Anthony Kennedy, who announced his retirement from the Supreme Court today. In his over 30 years on the Court, he has written some of the most seminal opinions in modern jurisprudence, and he will be remembered as one of the most important Supreme Court justices in American history. 

Justice Kennedy’s retirement leaves an important vacancy on the Supreme Court, and President Donald Trump will now have the opportunity to nominate a new Supreme Court justice from his superb list of potential Supreme Court nominees who respect the text of the Constitution and the role of the Court. While Senate Democrats have obstructed and delayed President Trump’s judicial nominees whenever possible, we trust that President Trump’s nominee will be vetted and confirmed due to the strong leadership of Senate Judiciary Committee Chairman Chuck Grassley and Majority Leader Mitch McConnell. 

RNLA President Elliot Berke stated: “Since he was appointed by President Reagan in his second term, Justice Kennedy has been an important voice on the Court. We wish him nothing but the best in retirement. President Trump has mentioned many excellent candidates to replace Justice Kennedy, and we urge the Senate to not play politics but consider his nominee in as expedient a manner as possible.” 

RNLA Chair John Ryder agreed: “Justice Kennedy has been a champion of First Amendment rights from political speech to the free exercise of religion. His voice and views have made a great contribution to our understanding of the Constitution."

Senate Majority Leader Mitch McConnell praised Justice Kennedy, particularly for his work in defending the First Amendment:

I want to express gratitude for the extraordinary service that Justice Kennedy has offered our nation. We owe him a debt of thanks for his ardent defense of the First Amendment right to political speech. #SCOTUS

— Leader McConnell (@SenateMajLdr) June 27, 2018

Chairman of the Senate Judiciary Committee Chuck Grassley said this of Justice Kennedy's tenure:

I thank Justice Kennedy for his decades of service to the law, to our republic + to the American ppl Our country owes him a debt of gratitude

— ChuckGrassley (@ChuckGrassley) June 27, 2018

The RNLA has a panel of legal experts available to discuss the retirement and the process for replacing Justice Kennedy. 

The RNLA will update this blog post as additional news comes out.

Last updated: June 27, 2018 at 5:00pm.

Reversing the Obama DOJ's Politicization of Justice with Trump Pardon of D'Souza

In stark contrast to the current Department of Justice (DOJ), the Obama Justice Department was run more as a political shop with Eric Holder serving more as a DNC Counsel. As even NPR stated:

Justice Department traditionalists grimaced when former Attorney General Eric Holder called himself President Obama's "wingman."

A prime example of how this politicization was more than words and ran throughout the Obama DOJ was the treatment of Dinesh D’Souza.  As President Trump stated:

Will be giving a Full Pardon to Dinesh D’Souza today. He was treated very unfairly by our government!

— Donald J. Trump (@realDonaldTrump) May 31, 2018

D’Souza illegally gave $20,000 to a college friend’s campaign for Senate, that she lost by 46 points.  He is 100% guilty.  He was also a major and financially successful critic of Obama and progressives.   He should have been punished, but the punishment was completely over the top by an Obama DOJ that was trying to silence an Adminstration critic.  Obama supporter Alan Dershowitz stated at the time:

The Justice Department's tactics remind Dershowitz of the words of Stalin's secret police chief, Lavrentiy Beria, who said, "Show me the man and I’ll find you the crime."

"This is an outrageous prosecution and is certainly a misuse of resources," charged Dershowitz. "It raises the question of why he is being selected for prosecution among the many, many people who commit similar crimes.

"This sounds to me like it is coming from higher places. It is hard for me to believe this did not come out of Washington or at least get the approval of those in Washington."

Former FEC Commissioner David Mason added at the time:

Law enforcement experts tell Newsmax that if the FBI or another federal agency received a tip about a fraudulent act involving just $20,000, the government would likely show little interest in investigating. Mason notes that a violation of $20,000 in contributions is trivial compared to most cases.

"The violation involves a pretty small amount for this type of case," said Mason, who was an FEC commissioner from 1998 to 2008. When small amounts of campaign financing regularities are uncovered the matter is usually resolved at a low level.

The unprecentedented arrest makes even more sense when you realize the U.S. Attorney in charge of the case was Preet Bharara.  The same U.S. Attorney who refused to leave his position after President Trump was elected:

A few days ahead of a resignation request from the Department of Justice — part of the routine housecleaning of political appointees that accompanies every administration changeover — Bharara set up a “personal” Twitter account, writing portentously: “Stay tuned . . . ” Then, on Saturday, he tweeted: “I did not resign. Moments ago I was fired. Being the US Attorney in SDNY will forever be the greatest honor of my professional life.”

Leave it to a Manhattanite to be a drama queen.

The replacement of the nation’s 93 U.S. attorneys is standard procedure when a president from a different party takes the White House. Bill Clinton asked for the resignation of all but one U.S. attorney in March 1993 (unlike, Bharara, they complied); George W. Bush had replaced nearly every U.S. attorney by the end of his first year in office; Barack Obama swapped out Bush-era U.S. attorneys for his own — among whom was Bharara. This is not a scandal. Since the executive branch is tasked with enforcing the laws, and since every administration has different (sometimes radically different) enforcement priorities, each administration wants lawyers who will carry out its priorities. . . . The Constitution provides for this. And when an at-will employee refuses to give up his post, the White House obviously has no alternative but to can him.

Bharara was out for retribution against a critic of Obama and progressives to score political points.  The political nature of Bharara's prosecution is clear from comparing similar cases.  Take the higher profile candidate case involving Democratic Presidential Candidate John Edwards:

D'Souza's conviction was clearly political retribution. Compare attorney Pierce O'Donnell, who gave $26,000 in illegal contributions to 2004 Democratic presidential candidate John Edwards and ended up facing only misdemeanor charges .

The judge rightly rejected Bharara’s efforts to get D’Souza a seven-year prision term but D’Souza was still confined to a halfway house.  As Andrew McCarthy concludes:

No matter what you think of D’Souza’s politics, his treatment was abusive.

President Trump’s pardon of Dinesh D’Souza is just.

D’Souza took it a step further to call it Karma:

KARMA IS A BITCH DEPT: @PreetBharara wanted to destroy a fellow Indian American to advance his career. Then he got fired & I got pardoned

— Dinesh D'Souza (@DineshDSouza) May 31, 2018

SDNY Judge Holds Trump May Not Block Users from Personal Twitter Account

Today, a judge in the Southern District of New York held that President Trump may not block users from his personal Twitter account, @realDonaldTrump:

This case requires us to consider whether a public official may, consistent with the First Amendment, “block” a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no. . . .

We then proceed to the substance of plaintiffs’ First Amendment claims. We hold that portions of the @realDonaldTrump account -- the “interactive space” where Twitter users may directly engage with the content of the President’s tweets -- are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. In so holding, we reject the defendants’ contentions that the First Amendment does not apply in this case and that the President’s personal First Amendment interests supersede those of plaintiffs.

In the hours since its release, this decision has already ignited a storm of debate, some uninformed (see generally, the media) and some informed (see Eugene Volokh's initial analysis here).  Prof. Volokh notes that the Eastern District of Kentucky recently reached the opposite conclusion.

While many issues are unsettled when applying the First Amendment to social media and other technologies, Ed Whelan highlights some concerns with the decision:

My first take: I'm very skeptical of holding that "interactive space" of @realDonaldTrump Twitter account is a "designated public forum." I'm not persuaded that any part of Twitter is a public forum. 1/ https://t.co/z0SuwYRPPi

— Ed Whelan (@EdWhelanEPPC) May 23, 2018

Judge's assertion that "extent" of Trump/Scavino control over Twitter space is "sufficient to establish the government-control element" seems like naked assertion, is underdeveloped at best. Judge cites precedent of "privately owned theater under long-term lease to city." 2/

— Ed Whelan (@EdWhelanEPPC) May 23, 2018

But does anyone think that relationship between Twitter and user is anything like a long-term lease from one entity to another? "Designated public forum" precedents are far from clear, but this application strikes me as strained beyond the breaking point. 3/

— Ed Whelan (@EdWhelanEPPC) May 23, 2018

Doesn't judge's reasoning apply equally to public-university professors who use their Twitter account for work-related purposes? Or is that a ground of distinction that, in my haste, I've overlooked? 4/

— Ed Whelan (@EdWhelanEPPC) May 23, 2018

Ilya Shapiro points out that the identity of the parties may have improperly affected the holding:

The judicial #Resistance strikes again. Sure, you have a constitutional right to troll the president, but that doesn’t mean he can’t block/mute you. https://t.co/0VqI1Hpcf5

— Ilya Shapiro (@ishapiro) May 23, 2018

It is also worth noting that this case is concerning Donald Trump's personal Twitter account, @realDonaldTrump, which has been his for years and will remain his after leaving office, and not the official presidential Twitter account, @POTUS, which is operated by the current holder of the White House.  While the #resist movement may be cheering this decision as a victory against President Trump, few are pausing to consider its vast implications, as Mr. Whelan points out, if applied to public officials' Twitter accounts, from members of Congress down to the clerks at City Hall. 

ICYMI: David Bossie Talks Trump and Citizens United at the 2018 National Policy Conference

At the 2018 RNLA National Policy Conference, Citizens United President David Bossie discussed the landmark campaign finance case Citizens United v. FEC, and how that led to his relationship with President Trump.

Bossie came up with the concept of Citizens United after he saw commercials of the Michael Moore documentary Fahrenheit 9/11.  Citizens United ended up filing a complaint with the FEC arguing that the documentary violated section 203 of the Bipartisan Campaign Reform Act (BCRA), as it was produced and marketed by a variety of corporate entities, constituting political advertising and thus could not be aired within the 30 days before a primary election or 60 days before a general election. 

This concept in 2005 led to the Supreme Court decision in 2010 which has since resulted in many victories across the country due to Bossie's efforts.  It was this case that led Bossie to get to know President Trump on a more personal level.  Bossie stated:

"Because I had just won this case as in 2010 as the plaintiff, [Donald Trump] started asking me about politics.  So over the years, I kind of became one of the guys he called.  I introduced him to...Don McGahn, one of my longtime friends."

In 2016, Bossie worked as the Deputy Campaign Manager for Donald J. Trump for President alongside Campaign Manager Corey Lewandowski.  Bossie described in-depth his time on the campaign trail through election night and described how writing Let Trump Be Trump with Lewandowski about this experience was "natural" and "cathartic."

Bossie credited President Trump and the incredible accomplishments he has made from the economy to foreign relations during his tenure in office.  In regard to the upcoming midterm election Bossie stated:

"We have to tell the story of the good news of our accomplishments over the first year and a half.  It's an incredible list of accomplishments.  All of them good - for all Americans- not just conservatives or Republicans...

"If we do that, we're going to bring about real change because we will keep the House and add in the Senate."

To view Bossie's speech in its entirety, click here.  RNLA members may purchase a signed copy of his book Let Trump Be Trump, by signing into the Members Only section of RNLA.org after clicking here.

Former Courtroom Adversary: Kyle Duncan Will Be "Surpassing" Jurist on 5th Circuit

Paul Baier, appellate lawyer and law professor at Louisiana State University, penned a glowing endorsement of his former courtroom adversary and friend Kyle Duncan recently in The Hill. Mr. Duncan was nominated by President Trump to the 5th Circuit Court of Appeals back on September 28, 2017 and his nomination is pending a full Senate confirmation vote.

Kyle Duncan is a magnificent nominee for the Fifth Circuit who ought to be swiftly confirmed. I have known him as a colleague and scholar of constitutional law at Louisiana State University Law School, and clashed with him as an adversary in the Louisiana Supreme Court's same-sex marriage case that followed Obergefell v. Hodges. 

Mr. Duncan represented the state and its ban, while Mr. Baier represented the couple at the center of this rematch.  Mr. Baier remarked:

Having battled on the front lines in the same-sex marriage litigation, I can attest to the passionate disagreement and often contentious nature of the issue…Through it all, however, I always appreciated and respected Kyle's advocacy for his client and his respect for the humanity of the same-sex couples who would be most affected by the case. While I disagreed with many of his arguments, often emphatically, I never found a trace of bias, bigotry, or any disrespect towards the same-sex individuals in the case. 

Both of us strove mightily as adversaries. But we continue to eat and drink as friends.

Kyle knows well the difference between the advocate's role for his client (in the same-sex marriage case, the State of Louisiana) and what he would be called upon to decide as a judge on the Fifth Circuit. I maintain this view of Kyle even after having faced off against him in the highly charged atmosphere of same-sex marriage litigation. His ability to act as a judge and not advocate will surely carry over to other questions of public importance facing the Fifth Circuit.

Mr. Baier concluded clearly explaining his support and respect for Kyle Duncan:

Kyle Duncan is as sharp a lawyer as any of the leading Supreme Court advocates with whom I am familiar, and I have had the good fortune of observing the work of the Fifth Circuit and the Supreme Court for over 40 years…In my judgment, Kyle Duncan, unquestionably, will make a surpassing Fifth Circuit judge and jurist. His confirmation should be supported by all who value judges committed to fairness and scrupulous application of the law. It's time for Kyle Duncan to be confirmed.

With Congress in recess for the next two weeks, the earliest the Senate will likely take up additional confirmation hearings and votes will be the week of April 9th.

We will keep you posted on these judicial confirmations, hearings, votes, and Democrats' attempts to obstruct President Trump's excellent nominees.

Two More Judges Confirmed This Week

The Senate confirmed two more of President Trump's excellent judicial nominees this week: Elizabeth Branch, to the Eleventh Circuit, and Marvin Quattlebaum, Jr., to the District Court for the District of South Carolina.  Judge Branch was confirmed by a wide, bipartisan margin, 73 to 23 votes.

This brings the total confirmed in just over a year into President Trump's term to one Supreme Court justice, 14 circuit courts of appeals judges, 11 district court judges, three judges on the U.S. Court of Appeals for Veterans Claims, and one judge on the U.S. Court of Appeals for the Armed Forces.  Three more district court judges are scheduled for confirmation votes on Monday.

Senate Majority Leader Mitch McConnell said on the Senate floor on Monday:

“The Senate will soon vote to confirm another fine candidate to serve on the federal bench. Yesterday afternoon, we voted to advance the nomination of Judge Elizabeth Branch for the Eleventh Circuit Court of Appeals. Judge Branch has sat on the Georgia Court of Appeals since 2012. This follows a fine career that spanned both private practice and public service. 

“Judge Branch had previously answered the call to serve at the Department of Homeland Security, where she worked as Associate General Counsel, and then at the Office of Information and Regulatory Affairs. Her record and qualifications are well-known. Our colleagues on the Judiciary Committee reported her nomination favorably by an overwhelming vote. 

“Confirming this worthy nominee will be a further credit to the outstanding work of Chairman Grassley and the members of the committee. I encourage all my colleagues to join me in voting to confirm Elizabeth Branch today. Let’s continue to fulfill our constitutional responsibility and confirm the president’s outstanding judicial nominees.”

Senate Judiciary Committee Chairman Chuck Grassley agreed in his floor statement:

Mr. President, today the Senate is voting to confirm Judge Elizabeth Branch to serve as a U.S. Circuit Court Judge for the Eleventh Circuit. Judge Branch was favorably reported out of the Judiciary Committee on a 19-2 bipartisan vote. She has broad bipartisan support from her home state of Georgia. The American Bar Association rated Judge Branch as unanimously well-qualified. If the Senate confirms Judge Branch, as I’m confident it will, she will be the fourth woman confirmed by the Senate to the federal courts of appeals in the 115th Congress—three more than the one woman confirmed at this point in President Obama’s first term. . . .

As I noted earlier, if confirmed, Judge Branch will become the fourth female circuit-court judge confirmed under President Trump. Her confirmation puts her in good company, joining a class of first-rate female jurists and legal scholars. She will join a group that includes: 7th Circuit Judge Amy Coney Barrett, a former professor at Notre Dame University Law School and law clerk to Justice Scalia; 10th Circuit Judge Allison Eid, a former Colorado Supreme Court Justice and law clerk to Justice Thomas; and 6th Circuit Judge Joan Larsen, another clerk of Justice Scalia and former Michigan Supreme Court Justice. I’m confident that Judge Branch will serve as an excellent addition to this outstanding class of female circuit-court judges.

Judge Branch’s impressive background and bipartisan support suggest that she will be an excellent court of appeals judge.  I am pleased to support her nomination today.

There is still important work to be done, however, as 148 vacancies remain and 58 nominees are still pending (with more regularly being sent over to the Senate).  We thank President Trump, White House Counsel Don McGahn, Chairman Grassley, and Leader McConnell for all their leadership and work selecting, vetting, and confirming these excellent nominees.

Democrats #Resist America During State of the Union

Last night, President Trump delivered his first State of the Union address.  It was a strong speech, focusing on his Administration's accomplishments in the first year and his policy goals to continue making American great again.  As many commentators have noticed, in contrast to President Obama's State of the Union speeches, President Trump focused on "we" instead of "I" and on the greatness of America and the American people.

Of the many first-year accomplishments that President Trump noted, a few are especially noteworthy from a legal perspective (additions to prepared remarks from the delivered speech noted in brackets):

For the last year we have sought to restore the bonds of trust between our citizens and their Government. 

Working with the Senate, we are appointing judges who will interpret the Constitution as written, including a great new Supreme Court Justice, and more circuit court judges than any new administration in the history of our country. 

We are [totally] defending our Second Amendment, and have taken historic actions to protect religious liberty. . . . 

In our drive to make Washington accountable, we have eliminated more regulations in our first year than any administration in [the] history [of our country].

Also notable last night was the sheer recalcitrance of the Democrats.  It is common for the opposing party at State of the Union addresses not to applaud or rise for the President's policy proposals.  But the number of normally non-partisan things for which the Democrats (with a few exceptions) did not applaud or stand is astounding:

• Record-low African-American and Hispanic unemployment (the silence from the Congressional Black Caucus was deafening)
• Infrastructure spending (a perennial Democratic policy proposal)
• Veterans
• The strength of the American people
• Rising wages and prosperity
• Return of jobs to America
• Approval of life-saving medications and treatments (a.k.a. "right to try")
• The entrance and introduction of the President
• The National Anthem
• "In God We Trust" (the official motto of the U.S. by statute)
• Not telling America's enemies our plans and giving aid to allies and not enemies

See here and here.  As Fox News reported, there were a couple exceptions to the scowls from the Democrats: 

Members during the address chose not to stand when Trump honored Louisiana Republican Rep. Steve Scalise and praised his resolve for returning to work less than four months after he “took a bullet” from a gunman and "almost died.” 

And they chose not join in the applause for a 12-year-old boy in the gallery whom Trump praised for putting flags on soldiers’ graves on Veterans Day. 

“Democrats are no longer just the party of resistance and obstruction, they are now also the party of sitting on their hands,” said the Republican National Committee. “No matter the issue, Democrats chose to sit on their hands tonight.” 

There were three notable exceptions among Democrat senators. Joe Manchin, D-W.Va., Joe Donnelly, D-Ind., and Heidi Heitkamp, D-N.D., all red state Democrats facing tough re-election bids in November, stood and applauded multiple times.

Today, Sen. Manchin called out his Democratic colleagues for being "disrespectful," though Sen. Manchin also felt the peer pressure not to applaud or stand at times as well.

So while President Trump delivered a strong speech, highlighting and praising American values and the American people, the Democrats continued their resistance to such an extent that they would not even recognize those shared American values and the value of the American people.  As the President would say, SAD!

President Trump's Superb First Year of Judicial Nominations

Ed Whelan writes about President Trump's superb judicial nominees during his first year in office in the January issue of National Review:

Trump’s most important achievement on the judicial front in 2017 was his appointment of Supreme Court justice Neil Gorsuch to fill the vacancy left by Antonin Scalia’s death in February 2016. That appointment consummated Senate Republican leader Mitch McConnell’s strategy of keeping the vacancy open through the 2016 presidential election, and it resoundingly vindicated the wisdom of that strategy. . . .

In 2017, President Trump also appointed twelve federal appellate judges — a record for a president in his first year in office. . . . Beyond their number, Trump’s appellate appointees have, on the whole, outstanding credentials and are highly regarded in conservative legal circles. Indeed, six of the twelve have already earned their way onto Trump’s list of Supreme Court candidates. The twelve include three women [and] two Asian Americans . . . .

Three factors account for this remarkable success on federal appellate judges. First, the conservative legal movement has grown significantly over the past two decades. . . . Second, thank Harry Reid. In November 2013, the Democratic majority leader pushed to repeal the filibuster for lower-court (and executive-branch) nominees. His success meant that a steadfast minority of 41 or more senators could no longer block a judicial nomination. . . . Third, federal appellate nominations mattered deeply to the key players. Kudos to President Trump and White House counsel Don McGahn for selecting excellent nominees, and to Mitch McConnell and Senate Judiciary Committee chairman Chuck Grassley for placing a high priority on moving them through to confirmation.

But Mr. Whelan notes that, despite last year's successes, much work remains to be done, partly due to the huge number of vacancies that need to be filled and partly due to the obstruction of Senate Democrats at every step of the process:

Two big obstacles — one at the front end of the nomination process, the other at the back end — have caused these impasses and threaten to continue to stymie judicial confirmations. The front-end obstacle is the Senate Judiciary Committee’s so-called blue-slip privilege, which accords individual senators the opportunity to approve or disapprove of judicial nominees in their home states (and which derives its name from the piece of paper that senators once used to register their views). . . . Given the stark divide on judicial philosophy between the White House and Senate Democrats, not to mention the animosity between them, it’s no surprise that the consultations that the White House has undertaken on judicial nominations have yielded little fruit. . . . [The confirmation] line may prove long and slow because of the back-end obstacle that nominees face: the Senate’s arcane and cumbersome “cloture” process.

The entire article is well worth reading for a summary of the current status of federal judicial nominations.  As he notes, White House Counsel Don McGahn, Senate Majority Leader Mitch McConnell, and Senate Judiciary Chairman Chuck Grassley have been instrumental to the success of President Trump's first year, and Americans owe them a debt of gratitude.