Recently in Law & Justice Category

Sidney Powell attempts to catalog Hillary's countless crimes, and there are so many it's hard to keep track. He calls for a special prosecutor, but is that really necessary? I won't be surprised if the Obama Justice Department is eager enough to take her down. From what I've seen so far the DoJ has been moving cautiously but steadily forward in their investigation of Hillary. The caution is appropriate -- a slip up in the highest possible profile case would be humiliating. There's plenty of time to sort things out before the election.

If Hillary and her cabal don't end up in jail (or with a presidential pardon) it will be a national embarrassment.

While the FBI and Department of Justice have willfully ignored Hillary Clinton's outrageous conduct, they didn't hesitate a minute to investigate and prosecute former CIA Director and national hero, General Petraeus. He was just tarred, feathered and ridden out of the CIA on a rail for sharing some information (his own notebook) with his biographer who was both in the military and had a top secret clearance. Yet, Petraeus did not have a secret server set up to house his classified and top secret information or digital satellite imagery; he destroyed nothing; and, there was no "leak." But that's not all.

During the same years that Hillary was communicating about national security and world affairs off the grid, the Department of Justice has had no qualms threatening news reporters and prosecuting whistleblowers under the Espionage Act. To hell with the First Amendment and Supreme Court precedent, even the New York Times reported that this administration prosecuted more reporters and whistleblowers for "espionage" than all prior administrations put together.

The inspector general investigation into Hillary's use of a private email server for top secret communications has expanded to her top aides, and Hillary is no doubt looking among them for a scapegoat with enough importance to distract the public from her misdeeds. Who will be sacrificed so that Hillary can go free?

As pressure builds on Hillary Clinton to explain her official use of personal email while serving as secretary of state, she faced new complications Tuesday. It was disclosed her top aides are being drawn into a burgeoning federal inquiry and that two emails on her private account have been classified as "Top Secret." ...

At least four top aides have turned over records, including copies of work emails on personal accounts, to the State Department, which is collecting them in response to a subpoena from Capitol Hill, according to the department. Lawmakers have demanded records, including personal emails, from six other aides, but it's unknown whether they used personal email for work.

And now Hillary has decided she has no choice but to surrender her email server to investigators. A proper forensics investigation will help us understand the use, configuration, and breaches that occurred on the server over the past six years, but it will also be interesting to see what is discovered about about the cover-up that's been going on for the past few months.

Hillary Rodham Clinton's presidential campaign casts her decision to turn over her personal email server to the Justice Department as cooperating with investigators. Her Republican critics suggest that the move and new revelations about classified information points to her malfeasance as secretary of state. ...

Federal investigators have begun looking into the security of Clintons' email setup amid concerns from the inspector general for the intelligence community that classified information may have passed through the system. There is no evidence she used encryption to prevent prying eyes from accessing the emails or her personal server.

Hillary Clinton's handling of classified material is worse than the behavior that led David Petraeus to plead guilty to a criminal charge last year. General Petraeus is a generally honorable man who made some very bad decisions that cost him (and our country) dearly. Hopefully Hillary will act as honorably and plead guilty when she is charged.

The inspector general for the government's intelligence community, I. Charles McCullough III, has found that some of the 30,000 Clinton e-mails turned over to the State Department contain classified material. Taking a random sample of 40 e-mails, he found four with classified information -- material that was classified at the time it was sent and that was extremely vulnerable to hackers and foreign intelligence agencies. A fifth e-mail concerning the 2012 Benghazi attack that left an ambassador and three other Americans dead is already public and appears to have contained classified information. In all likelihood, there are many more.

Not so long ago, the government took that sort of thing seriously. The U.S. Criminal Code states, with regard to documents or materials containing classified information: "It is a crime to knowingly remove such documents without authority and with the intent to retain such documents or materials at an unauthorized location." David Petraeus, the former CIA director and Army general, pled guilty just this year to mishandling classified information after storing sensitive CIA data in an unlocked desk drawer at his home in Arlington, Va. If a desk in a house in Virginia is an unauthorized location, a server in a house in Hillary Clinton's New York home is one, too.

Charles Murray has a novel suggestion for overcoming the suffocating rules our American bureaucracy foists on us free citizens: insure yourself against penalties and ignore the absurd regulations. I'd really like to read an analysis by an expert on insurance and insurance law who can tell us if this proposal is plausible.

Seen in this perspective, the regulatory state is the Wizard of Oz: fearsome when its booming voice is directed against any single target but, when the curtain is pulled aside, revealed as impotent to enforce its thousands of rules against widespread refusal to comply.

And so my modest proposal: Let's withhold that compliance through systematic civil disobedience. Not for all regulations, but for the pointless, stupid and tyrannical ones. ...

The risk in doing so, of course, is that one of the 70-odd regulatory agencies will find out what you're doing and come after you. But there's a way around that as well: Let's treat government as an insurable hazard, like tornadoes.

People don't build tornado-proof houses; they buy house insurance. In the case of the regulatory state, let's buy insurance that reimburses us for any fine that the government levies and that automatically triggers a proactive, tenacious legal defense against the government's allegation even if--and this is crucial--we are technically guilty.

Why litigate an allegation even if we are technically guilty? To create a disincentive for overzealous regulators. The goal is to empower citizens to say, "If you come after me, it's going to cost your office a lot of time and trouble, and probably some bad publicity." If even one citizen says that, in a case where the violation didn't harm anything or anyone, the bureaucrat has to ask, "Do I really want to take this on?" If it's the 10th citizen in the past month who says it and the office is struggling with a backlog of cases, it's unlikely that the bureaucrat's supervisor will even permit him take it on.

It's whack-a-mole, but the government doesn't have enough hammers to hit all of us.

More from Michael Barone.

Jonathan Adler is mostly right but ultimately wrong in his argument that the federal government lacks the power to regulate abortion, and that such power is reserved for the states. However, he seems to slide past the most powerful and obvious counter-argument: the Supreme Court has injected itself into the issue (and it's part of the federal government).

(Obviously I'm not a lawyer, but I believe that abortion is a moral and political question, not primarily a legal one. I'm not trying to create an air-tight legal position that supports any specific abortion restrictions.)

Relevant legal questions -- how to define murder, when to excuse the taking of life as defensible or otherwise permissible, even defining what constitutes the end-of-life for medical and other purposes -- have always been matters of state law. Drawing such lines necessarily involves drawing distinctions that will please some and offend others, but that hardly creates an equal protection problem, let alone justify federal legislation. Again, where protected classes are not involved, a state's decision to draw different distinctions than would the federal government, even on matters involving life and death, is insufficient to justify a federal law.

Note there the invocation of "protected classes" -- who decides what the protected classes are? Can't Congress? Of course it can; Congress (with sign-off from the President) can decide that unborn babies are a protected class. Most of the protected classes were created by the Civil Rights Act of 1964, which was was passed by Congress and signed by President Johnson.

Glenn Reynolds also argues that Republicans should oppose abortion legislation because they support limited government. I respect the Instapundit a lot, but I think he misses the same element that Mr. Adler did.

One such conflict is likely to appear this week, when the House is expected to vote on a 20-week limit on abortions. Such a limit polls well-- Americans are much more supportive of early abortionsthan late-term abortions -- and would still leave the United States with more-liberal abortion laws than nearly all of Europe. Even so, the Republicans need to be asking themselves -- and the Democrats need to be asking them, too -- where, exactly, Congress gets the power to limit abortions to 20 weeks?

Where did the Supreme Court get the power to enable abortions? Article 3, Section 2 of the Constitution says that Congress may limit the jurisdiction of the Supreme Court (except for "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party"). So clearly Congress could remove abortion from the jurisdiction of the Supreme Court if it wanted to. That's de facto power to regulate abortion without interference from the courts, if Congress chose to exercise it.

As I wrote at the top, I'm not skilled enough to make an air-tight legal argument. But I know that if the law allows the slaughter of millions of babies every year then the law is wrong.

It bears repeating: never consent to a search. If the authorities have a legitimate cause to search you they won't need to ask first. If they ask, always say no. Then ask if you're under arrest, and if not then walk away. Don't say anything else.

In a cold consent encounter, a person is stopped if an agent thinks that person's behavior fits a drug courier profile. Or an agent can stop a person cold "based on no particular behavior," according to the Inspector General report. The agent then asks people they have stopped for consent to question them and sometimes to search their possessions as well. By gaining consent, law enforcement officers can bypass the need for a warrant. ...

Moreover, agents can seize cash they find during a cold consent encounter. According to data analysis conducted by the Institute for Justice, half of all DEA cash seizures from 2009 to 2013 were under $10,000. Thanks to civil forfeiture laws, law enforcement can take cash and other valuable property, based on an officer's often subjective determination of probable cause, even from those who have not been charged with a crime. ...

Disturbingly, the Inspector General found that DEA interdiction task force groups have been seizing cash from travelers and then urging them to sign forms disclaiming their own cash and "waiving their rights." In one cold consent encounter, DEA agents stopped another African-American woman in part because she was "pacing nervously" before boarding her flight. After gaining her consent, the agents searched her luggage and found $8,000.

A drug dog then alerted to the cash, and the DEA seized it. However, the Inspector General report did not state if any drugs were actually found or if the woman was ever charged with or convicted of a crime in connection with the seizure. Not to mention that most U.S. currency in circulation has been exposed to drugs.

(HT: Simple Justice.)

Should the punishment for intentionally false accusations match the punishment of the accused crime? (Ugh, that's a hard sentence to frame.) This mind-blowing story about several police officers and prosecutors falsely prosecuting an innocent man for assault is an appalling test case.

But here's my question: Why aren't the seven witnesses to Dendinger's nonexistent assault on Cassard already facing felony charges? Why are all but one of the cops who filed false reports still wearing badges and collecting paychecks? Why aren't the attorneys who filed false reports facing disbarment? Dendinger's prosecutors both filed false reports, then prosecuted Dendinger based on the reports they knew were false. They should be looking for new careers -- after they get out of jail.

If a group of regular citizens had pulled this on someone, they'd all likely be facing criminal conspiracy charges on top of the perjury and other charges. So why aren't these cops and prosecutors?

I could be wrong, but my guess is that they'll all be let off due to "professional courtesy" or some sort of exercise of prosecutorial discretion. And so the people who ought to be held to a higher standard than the rest of us will once again be held to a lower one.

Intentionally false accusations should be punished severely and should never be forgotten by the legal system.

Instapundit has been all over the Rotherham child gang-rape scandal in the UK, but here's a summary for you if you've missed it:

At least 1,400 children were subjected to appalling sexual exploitation in Rotherham between 1997 and 2013, a report has found.

Children as young as 11 were raped by multiple perpetrators, abducted, trafficked to other cities in England, beaten and intimidated, it said. ...

Professor Alexis Jay, who wrote the latest report, said there had been "blatant" collective failures by the council's leadership, senior managers had "underplayed" the scale of the problem and South Yorkshire Police had failed to prioritise the issue.

Prof Jay said: "No-one knows the true scale of child sexual exploitation in Rotherham over the years. Our conservative estimate is that approximately 1,400 children were sexually exploited over the full inquiry period, from 1997 to 2013."

Revealing details of the inquiry's findings, Prof Jay said: "It is hard to describe the appalling nature of the abuse that child victims suffered."

The inquiry team found examples of "children who had been doused in petrol and threatened with being set alight, threatened with guns, made to witness brutally violent rapes and threatened they would be next if they told anyone".

It's worth pointing out that this kind of systemic abuse simply could not happen in America thanks to the Second Amendment. Some parents in Rotherham attempted to protect their daughters, but thanks to the UK's lack of basic civil rights the parents were unarmed while the rapists were not. The people of the UK should certainly investigate how their public officials failed them so thoroughly, but they should also consider this: if their government hadn't disarmed law-abiding citizens their daughters wouldn't be at the mercy of rapists and bureaucrats.

This probably won't be a surprise to readers of this blog, but crime rates in Illinois have been plunging since the state began issuing permits to carry concealed weapons.

Since Illinois started granting concealed carry permits this year, the number of robberies that have led to arrests in Chicago has declined 20 percent from last year, according to police department statistics. Reports of burglary and motor vehicle theft are down 20 percent and 26 percent, respectively. In the first quarter, the city's homicide rate was at a 56-year low.

"Abe Lincoln may have freed all men, but Sam Colt made them equal."

Two Ferguson-related stories this morning. First up, the officer who shot Michael Brown was beaten by Brown before the shooting.

Darren Wilson, the Ferguson, Mo., police officer whose fatal shooting of Michael Brown touched off more than a week of demonstrations, suffered severe facial injuries, including an orbital (eye socket) fracture, and was nearly beaten unconscious by Brown moments before firing his gun, a source close to the department's top brass told

"The Assistant (Police) Chief took him to the hospital, his face all swollen on one side," said the insider. "He was beaten very severely."

Second, it looks like Ferguson authorities routinely hassle citizens for minor infringements.

You don't get $321 in fines and fees and 3 warrants per household from an about-average crime rate. You get numbers like this from bullshit arrests for jaywalking and constant "low level harassment involving traffic stops, court appearances, high fines, and the threat of jail for failure to pay."

As usual, the situation is more complex than it first appears.

Glenn Reynolds has been on a roll quoting brilliant commenters recently, and here's another: libertarians should go to Ferguson to make their case.

A friend writes on Facebook: "This presents such a great opportunity for libertarians to flip a significant fraction of blacks from big government to limited government. If Rand Paul wants to do outreach to the black community, get there now. Preferably with some other libertarians. Talk about drug war, killing men for cigarette taxes, drones, NSA spying, out of control cops, and how the problem that the government is making up dumb reasons to abuse its authority, not that this abuse would be better if applied in a more evenhanded way. Then sponsor national reform and try to mobilize these non traditional allies. Big opportunity just sitting there."

Thanks to the shoddy drafting of the Obamacare law the DC federal appeals court has ruled that it's illegal to subsidize healthcare plans bought through the federal exchange. The law only authorizes subsidies for plans bought through state exchanges, not through the federal exchange that was created for states that decided not to create exchanges of their own. Obviously this was not the intent of the law, and under normal circumstances Congress would simply pass an update to the law to remove any grounds for controversy. Of course that's impossible due to the politics surrounding Obamacare, and now the whole scheme may be doomed unless the courts decide to apply the law as intended rather than as written. Which these judges, at least, have refused to do.

The 2-1 ruling said such subsidies can be granted only to people who bought insurance in an Obamacare exchange run by an individual state or the District of Columbia--not on the federally run exchange The ruling relied on a close reading of language in the Affordable Care Act.

"Section 36B plainly makes subsidies available in the Exchanges established by states," wrote Senior Circuit Judge Raymond Randolph in his majority opinion in the case known as Halbig v. Burwell, where he was joined by Judge Thomas Griffith.

"We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up their own Exchanges, our ruling will likely have significant consequences both for millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly."

Obviously I think it would be best for the country for the whole law to collapse. The impossibility of properly fixing this "technical error" in the law is yet another example of how badly things can go when one party forces a bill into law against the will of the citizenry and with no support from the other party. Congress can't patch this mistake, and the courts shouldn't clean up Congress' mess.

Does it appear to you that the AP might be biased in favor of "free" contraception?

The Supreme Court says corporations can hold religious objections that allow them to opt out of the new health law requirement that they cover contraceptives for women.

The justices' 5-4 decision Monday is the first time that the high court has ruled that profit-seeking businesses can hold religious views under federal law. And it means the Obama administration must search for a different way of providing free contraception to women who are covered under objecting companies' health insurance plans.

But of course there is no such thing as "free" contraception (except perhaps abstinence, which has its own opportunity cost). As for pharmaceutical contraception, someone has to pay for it even if the payer isn't the user. The Supreme Court has decided that corporations (really, their shareholders) can't be forced to pay something that violates their religious beliefs. Freedom of religion is protected by the Constitution, and getting someone else to pay for your contraception isn't. Seems simple to me.

I don't know the ins and outs of the Arizona religious freedom bill that Republican Governor Jan Brewer is considering now. However, I'd like to comment on the issue in a very broad sense.

People have a right to choose who they associate with. The government should only be able to force or prohibit associations when that is the least restrictive method for satisfying a compelling public interest. (And I'd define "compelling public interest" very narrowly, likely limited to life-or-death situations.) As a consequence of this right of association, people are free to discriminate in their personal lives for or against whomever they want. Unjust discrimination is immoral, but not everything that is immoral should be illegal. Business owners have a right to grant or deny service to whomever they choose; employees have a right to grant or deny services to whomever they choose; and owners can fire employees whose choices conflict with their own.

People also have a right to choose and exercise their religious beliefs, but in the context of business service I think this right is largely subsumed by the right of association. A person's religious beliefs will be one factor he uses to choose his associations, but he is free to choose his associations based on any criteria he prefers.

(Note: the government does not have a right of association and cannot be allowed to discriminate unjustly. The government is a representative of all the people, and does not have the right to treat one person different from another without a compelling reason.)

Mark Steyn continues to fight the good fight for freedom of speech and points out that America's court system has become a medieval trial by ordeal. Even if/when Steyn and Dinesh D'Souza are eventually exonerated they will have spent huge quantities of time and money, and their voices will have been squelched. These trials should be dismissed immediately.

I know nothing about law except what I learned as a schoolboy. For example, way back in 1166, the Assize of Clarendon began what we now understand as the right to trial by jury, which was generally welcomed as an improvement over trial by combat or trial by ordeal. But it's only better if it's the right to a speedy trial. Otherwise, as in the sclerotic and diseased system prevailing here, trial by jury is itself deformed into trial by ordeal. In a speedy-trial system, a litigant has to be very sure that he wants to go to court. But, in America today, an abusive litigant funded by others - as Mann is - well knows that he can simply file a suit and drag things out, taking his opponents out of the public square for years on end - just as Obama plans to do with D'Souza. If the DC Superior Court and whatever dump of a New York courthouse D'Souza winds up in offered the same express service as Henry II did with the Assize of Clarendon, that would be one thing. But, as it is, in America the very justice system itself has become tyrannous. That's its appeal to Mann, and to Obama.

This is a big deal! Maybe it's time to move back to California? Ninth Circuit holds that California's gun carry prohibition is unconstitutional.

So holds today's Peruta v. County of San Diego (9th Cir. Feb. 13, 2014) (2-1 vote). The court concludes that California's broad limits on both open and concealed carry of loaded guns -- with no "shall-issue" licensing regime that assures law-abiding adults of a right to get licenses, but only a "good cause" regime under which no license need be given -- "impermissibly infringe[] on the Second Amendment right to bear arms in lawful self-defense." The Ninth Circuit thus joins the Seventh Circuit, and disagrees with the Second, Third, and Fourth Circuits. (State courts are also split on the subject.)

President Obama has refused to enforce parts of the law merely because he dislikes them, so it's hard for leftists to complain if sheriffs refuse to enforce gun restrictions on Constitutional grounds. I think it's legit for every American citizen who happens to hold a government position to personally ensure that their official behavior is in line with the Constitution.

Side note: just as we are wary of the federal government strangling the sovereignty of the states, we should push for state governments that respect the liberty of counties and municipalities.

When Sheriff John Cooke of Weld County explains in speeches why he is not enforcing the state's new gun laws, he holds up two 30-round magazines. One, he says, he had before July 1, when the law banning the possession, sale or transfer of the large-capacity magazines went into effect. The other, he "maybe" obtained afterward.

He shuffles the magazines, which look identical, and then challenges the audience to tell the difference.

"How is a deputy or an officer supposed to know which is which?" he asks.

Colorado's package of gun laws, enacted this year after mass shootings in Aurora, Colo., and Newtown, Conn., has been hailed as a victory by advocates of gun control. But if Sheriff Cooke and a majority of the other county sheriffs in Colorado offer any indication, the new laws -- which mandate background checks for private gun transfers and outlaw magazines over 15 rounds -- may prove nearly irrelevant across much of the state's rural regions.

Another action by President Obama that I approve of: reduced sentencing for non-violent offenders. In general I think we'd benefit greatly by ending prohibition on most drugs, but this is certainly a step in the right direction. Drug prohibition is really seeking to solve two linked but separate problems: drug addition, and drug violence. Unfortunately prohibition exacerbates violence by creating a black market for drugs.

"A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities," Holder plans to say Monday, ­according to excerpts of his ­remarks that were provided to The Washington Post. "However, many aspects of our criminal justice system may actually exacerbate this problem rather than alleviate it."

Holder is calling for a change in Justice Department policies to reserve the most severe penalties for drug offenses for serious, high-level or violent drug traffickers. He has directed his 94 U.S. attorneys across the country to develop specific, locally tailored guidelines for determining when federal charges should be filed and when they should not.

"Too many Americans go to too many prisons for far too long and for no good law enforcement reason," Holder plans to say. "We cannot simply prosecute or incarcerate our way to becoming a safer nation."

I haven't written much about the trial of George Zimmerman for the killing of Trayvon Martin. Relying only on media reports a few things seemed obvious to me from the beginning and the verdict pretty much vindicates all my prior beliefs.

1. There's no dispute that Zimmerman killed Martin, but nothing about the sequence of events lines up with the criteria for murder (or manslaughter). For one thing, a man intent on murder wouldn't have called the police right beforehand.

2. Zimmerman was foolish to get out of his car to pursue or observe someone he thought was dangerous. Martin didn't have criminal intentions, but if Zimmerman had been right then it probably would have been Zimmerman who was killed. Unless you believe that someone is in immediate danger it is foolish to endanger yourself.

3. Based on the injuries and witness reports it seems obvious that Martin initiated the physical confrontation. Zimmerman had injuries consistent with being beaten as he and other witnesses described; the only wound on Martin was the fatal gunshot.

4. Despite the foolishness of his pursuit, Zimmerman had as much of a right to be walking around the neighborhood as Martin did and did not provoke the assault.

5. Race was not really a factor in the event, but race has been injected into the situation by the media and others who benefit from sensationalizing tragedy.

6. "Not guilty" is the right verdict. Martin's death was tragic and avoidable, and both his actions and Zimmerman's contributed to it.

Finally, consider the very similar case of Roderick Scott, a black man with a handgun permit who killed Christopher Cervini, a white teenager, in self-defense in 2009.

Cervini's family members say justice wasn't served. They say Christopher was murdered in cold blood, that he'd never been in trouble and Scott acted as judge, jury and executioner.

"The message is that we can all go out and get guns and feel anybody that we feel is threatening us and lie about the fact," said Jim Cervini, Christopher's father. "My son never threatened anybody. He was a gentle child, his nature was gentle, he was a good person and he was never, ever arrested for anything, and has never been in trouble. He was 16 years and four months old, and he was slaughtered."

Scott says he acted in self defense when he confronted Cervini and two others saying they were stealing from neighbors cars. He told them he had a gun and ordered them to freeze and wait for police.

Scott says he shot Cervini twice when the victim charged toward him yelling he was going to get Scott.

"How can this happen to a beautiful, sweet child like that?" asked Cervini's aunt Carol Cervini. "All he wanted to do was go home. And then for them to say, he was saying, 'Please don't kill me. I'm just a kid,' and he just kept on shooting him."

The federal government refuses to categorize the 2009 Ft. Hood massacre as a "terrorist attack", because obviously President Obama solved our terrorism problems and we don't have "terrorist attacks" anymore. What's in a name?

The Department of Defense confirms to NBC 5 Investigates that accused Fort Hood shooter Major Nidal Hasan has now been paid more than $278,000 since the Nov. 5, 2009 shooting that left 13 dead 32 injured. The Army said under the Military Code of Justice, Hasan's salary cannot be suspended unless he is proven guilty. ...

The Army has not classified the wounds of the Ft. Hood victims as "combat related" and declines to label the shooting a "terrorist attack",

The "combat related" designation is an important one, for without it Burnett and other shooting victims are not given combat-related pay, they are not eligible for Purple Heart retirement or medical benefits given to other soldiers wounded either at war or during the Sept. 11, 2001 attack on the Pentagon.

As a result, Burnett, his wife Torey, and the families of other Fort Hood victims miss out on thousands of dollars of potential benefits and pay every year.

President Obama's political fortunes are clearly more important than the truth, and who really cares about the follow-on injustices that only affect little people? Hasan is "assumed innocent" of this alleged "workplace violence", so why shouldn't he keep getting paid? His victims weren't killed or injured in a "combat zone", so why should they get any special benefits?

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