Recently in Law & Justice Category

(I posted this to the DnD subreddit also: link.)

The Open Gaming License fiasco with Dungeons & Dragons producer Wizards of the Coast is a symptom of a larger problem: our insane Intellectual Property system that currently protects material for the life of the author plus 70 years. As a comparison, patents generally only protect inventions for 20 years.

The purpose of intellectual property laws is to balance public and private interests. IP law is an agreement between society and creators: the creator is guaranteed an exclusive right to their creation for a period of time, and in exchange the public gets rights to the creation afterwards. It's intended to be a balance of interests, but the balance has gotten completely out of whack thanks to (obviously) lobbying throughout the 20th century by major copyright holders like Disney.

In my opinion, the current copyright term, life of the author plus 70 years, is grossly unfair to the public. I believe that the internet era has demonstrated that creators would be incentivized to create even without such a long period of exclusivity. Think about it: would you create less stuff if your great-grandkids didn't get exclusive rights? I doubt it.

Listen: creators should be able to make money from their work. I don't think copyright should go to zero, but why not bring it in line with patent protection with a 20-year term?

Disney, DnD, and many other creations are part of our generation's cultural legacy, part of a 10,000+ year inheritance that has been handed down through time to our grandparents, our parents, and now us. It's morally wrong for our ancestors and corporations to lock our inheritance away from us.

Copyright protections must be re-balanced to protect both creators and the public. This problem with WotC shouldn't be just about a license, it should be about the IP laws that grant them exclusive rights to creations that are over 50 years old. Our generation should re-open these negotiations and come up with a fair copyright term.

It's a complete mystery why anyone would bribe Hunter Biden. Maybe it's because of his artistic talent.

But how about the question of how this investigation, and Hunter's underlying conduct, relate to President Biden himself? To read the Times and the WaPo, you would think that that whole question is somehow out of line. The Times's piece doesn't even discuss Joe's role or involvement, although it does include this bizarre line:

It is not clear whether the criminal probe is focused solely on Hunter Biden, or if he is among a group of individuals and companies being scrutinized.

As if anyone, let alone China or Burisma, would pay Hunter Biden millions of dollars without an expectation that it would influence his father. Over in the WaPo, in the context of paragraphs relating to Hunter's dealings with Chinese government-controlled energy company CEFC, we have this:

The Post did not find evidence that Joe Biden personally benefited from or knew details about the transactions with CEFC. . . .

The funny thing is that outside the sole exception of the Biden family, large payments to the children of powerful government officials by those with interests potentially affected by those officials' actions are universally understood to be corrupt efforts to influence the officials. In cases involving people other than the Bidens, whether the official/parent "personally benefited" from the payments or "knew details" of the transactions are considered completely irrelevant.

I guess we'll never know.

Alexander Macris explains how a federal court might consider Trump's election fraud claims based on Donohue v. Board of Elections of State of New York, 435 F. Supp. 957 (E.D.N.Y. 1976). Donohue was a federal district court case in New York that isn't binding on any other district court, much less the Supreme Court, but the decision outlines some pretty logical considerations. In short:

The Donohue court has thus laid out the legal test that the plaintiff must meet. He must plead and prove

1. specific acts of misconduct,

2. involving 'willful or knowing' ballot fraud,

3. by state officials or private persons acting jointly with state officials,

4. that changed the outcome of the election.

This is a heavy burden. The Trump campaign will have to work hard to meet this test. But it is a matter of fact and evidence.

The district court ruled against the plaintiff (President Ford) in Donohue for a few reasons:

First, they didn't show that the irregularities were willful acts of misconduct by state officials. Second, the particular 'irregularity' they showed didn't really prove fraud; there were other inferences that were plausible. Third, they didn't establish that the irregularities actually were irregularities in Carter's favor! They showed a pattern of irregular votes, but didn't show that those irregular votes were for Jimmy. Fourth, they didn't offer any independent evidence to buttress their statistical analysis - no witnesses came forward to allege state officials had acted wrongly, for instance. Finally, they didn't show enough irregularity to change the outcome. So the Ford campaign lost its case on the facts, not on the law. They had a case, but didn't have the evidence.

Trump's lawyers are certainly familiar with the case law, so watch for them to build their case(s) around these four points.

Politicians of all stripes agree: We The People shouldn't be allowed to have strong encryption. I'm generally pleased with Bill Barr as Attorney General, but his (and Trump's) demand for "backdoors" into encryption is morally wrong and politically foolish.

The US Department of Justice, in conjunction with the "Five Eyes" nations, has issued a statement asking Apple and other tech companies to effectively create backdoors that will weaken encryption strength overall to provide law enforcement access to data.

In a statement released on Sunday by the US Department of Justice, the "International Statement: End-to-End Encryption and Public Safety" is a continuation of the long-running encryption debate. In the latest salvo in the ongoing war, representatives of governments from multiple countries are demanding access to encrypted data for the sake of sexually exploited children.

The lengthy statement demands tech companies "embed the safety of the public in system designs" relating to encryption, to enable companies to "act against illegal content and activity effectively with no reduction to safety," while enabling law enforcement to do its job. This includes enabling law enforcement officials "access to content in a readable and usable format where an authorization is lawfully issued, is necessary and proportionate, and is subject to strong safeguards and oversight."

This demand is built on two falsehoods.

First, there's no such thing as a "safe" backdoor. Once encryption is weakened, it's weakened for all attackers, not just "good guys". Backdoors can be found. Additionally, the government has been generally terrible and protecting sensitive data, and it would only take one breach, leak, or whistle-blower to release all the backdoor keys.

Second, everyone hates the sexual exploitation of children and wants it prosecuted, but the government already has plenty of tools available. By the time law enforcement has caught a perpetrator and are in possession of his phone, they're sure to have plenty of evidence for a conviction even without decrypting the phone.

Finally, it doesn't seem to me that the government has demonstrated that it is worthy of our trust. We The People should keep our guns and our encryption.

Former FBI lawyer Kevin Clinesmith pled guilty to altering an official document in the Trump-Russia investigation by inserting the word "not". It's likely that this plea deal paves the way for Clinesmith's testimony against other malefactors.

Other, more senior FBI officials must have been involved in these FISA abuses, though Durham hasn't said so yet. Some committed abuse themselves. Others knew about it or should have known. Still others must have discovered the misrepresentations, but failed to report them to the FISA court, as they were required to do. Those failures are felonies.

Clinesmith has said he gave other FBI members the true document, not just the altered one. The 23rd paragraph of the charging information says Clinesmith "provided the unchanged C.I.A. email to Crossfire Hurricane agents and the Justice Department lawyer drafting the original wiretap application." That's a smoking bazooka.

Clinesmith actually worked on Robert Mueller's team. He was tasked from the bureau to work with that team, which then submitted his falsified document to the FISA court. That's crucially important. If attorneys on the special counsel team knew about his crime and did nothing to inform the court, if they continued to use a document they knew was fraudulent, they will face charges. That would implicate Mueller's team for the first time in illegal activity to undermine the Trump presidency. That's a much bigger matter than writing a biased report.

Did Clinesmith act alone or did anyone tell him to alter the document? That's a critical question, and Durham has not answered it yet. Nor has he said who knew what Clinesmith had done. Again, the key to proving that is either a paper trail or multiple cooperating witnesses. We should get Durham's answers when he issues more indictments.

This is exactly how an air-tight prosecution should be built. Stay tuned.

Andrew C. McCarthy's analysis of the latest revelations in the prosecution of Michael Flynn is not surprising given our understanding of the shady Mueller investigation, but I sincerely hope that the corrupt practices described aren't common in the American justice system. McCarthy himself is a former federal prosecutor, and he seems appalled by what he sees.

Powell and other champions of Flynn's cause have long claimed he did not lie to investigators -- a claim supported by the interviewing FBI agents, who concluded that Flynn had not made intentional misstatements, just failures of recollection, which are common. Instead, they maintain that Flynn was coerced into pleading guilty nearly a year later by special counsel Robert Mueller's team of hyper-aggressive prosecutors. Prosecutors did this, Powell argues, by threatening that if he refused to plead, they would prosecute his son. The son, also named Michael Flynn, worked in Gen. Flynn's private intelligence firm, which Team Mueller was scrutinizing over its alleged failure to register with the government as a foreign agent -- a dubious allegation that was rarely handled as a criminal offense before Mueller's probe.

After DOJ's revelations last Friday, Powell filed a submission with the court, asserting that the new disclosures demonstrate that Mueller's prosecutors not only pressured Flynn with the possibility of indicting his son; they also secretly assured Flynn's former counsel, the well-connected Washington firm of Covington & Burling (C&B), that Flynn's son would not be prosecuted if Flynn pleaded guilty. This "side deal" (a) was not explicitly memorialized in the formal plea agreement, (b) was not otherwise disclosed to the court as federal law requires, and (c) was designed to enable prosecutors to evade their due process obligations in future cases.

Basically, it sounds to me that the DOJ lawyers and Flynn's lawyers conspired to hide the true details of Flynn's plea agreement from the court because the prosecutors thought the details would embarrass them and weaken Flynn as a witness against other targets. Hiding these details from the court is illegal, but it's also super-shady to coerce a guilty plea by threatening a target's son with prosecution.

A proposed law would allow American victims of Wuhan coronavirus to sue the Chinese Communist Party for damages.

Americans will be able to take the Chinese Communist Party to court for its lies and omissions about the Chinese Wuhan coronavirus from the Middle Kingdom under a new bill proposed by Sen. Tom Cotton (R-Ark.) and Rep. Dan Crenshaw (R-Texas). The bill would strike down immunity for foreign countries like China in the specific case of the coronavirus, enabling Americans to sue for damages in U.S. courts.

"By silencing doctors and journalists who tried to warn the world about the coronavirus, the Chinese Communist Party allowed the virus to spread quickly around the globe," Cotton said in a statement on the legislation. "Their decision to cover up the virus led to thousands of needless deaths and untold economic harm. It's only appropriate that we hold the Chinese government accountable for the damage it has caused."

The immediate question then is: if plaintiffs win, how could they collect payment from the CCP? The CCP has plenty of assets in America that could be seized -- particularly real estate, which could be harvested at a premium (low) valuation thanks to the coronavirus -- but here's another idea: China owns about $1.1 trillion in American debt that could be transferred and repatriated to victorious plaintiffs.

If the United States moves forward with any kind of legal liability for the CCP it's likely to provoke retaliatory seizures of America assets in China.

We citizens obviously want law enforcement agencies to have a strong incentive to catch criminals, and we shouldn't expect them to balance that incentive against our needs for privacy. We citizens and our elected representatives need to be the ones doing the balancing, knowing that we'll sometimes have to push back against the very people who work to protect us. The final paragraph in this article about a data breach of Clearview's facial recognition software highlights the tension.

Facial-recognition technology--which matches photos of unidentified victims or suspects against enormous databases of photos--has long drawn intense criticism from privacy advocates. They argue it could essentially mean the end of personal privacy, especially given the proliferation of security cameras in public places. Some law-enforcement officials, meanwhile, see it as a tool with enormous potential value.

They're both right. How to balance privacy against crime risk is a political question, not a law enforcement question.

Inspector General Michael Horowitz uncovered a lot of wrongdoing by FBI investigators but can't quite seem to put all the pieces together. Why were these corrupt investigators so eager to spy on the Trump campaign?

Inspector General Michael Horowitz wrote in his report released this week that although there were a number of "errors and omissions" that occurred during the FBI's bizarre investigation, he found no evidence of "political bias" and that the investigation was otherwise legitimate and justified.

But "errors and omissions," a quote that was repeated over and over again in headlines, sounds like minor missteps that could have been taken care of with a little Wite-Out. It hardly covers the blatant wrongdoing that Horowitz described in his report -- corrupt law enforcement officers abusing their power.

Both in his report and during congressional testimony on Wednesday, Horowitz admitted that he didn't know why the FBI was so keen to spy on Trump campaign associate Carter Page, who was in fact not a Russian agent after all; that he didn't know why they continued to spy on Page, even after the FBI was informed by the CIA that Page had actually been working for them as an informant; and that he didn't know why, when the FBI continually sought to have its investigation reauthorized by the FISA court, it routinely withheld information from the court or straight-up misled about things that might have undermined the investigation.

In his report, Horowitz said he found seven times where FBI agents relied on "inaccurate, incomplete, or unsupported" information in order to continually seek reauthorization for the surveillance of Page and others in the campaign.

Seems like quite a mystery! I guess we'll never know, but at least we can be confident that there was no evidence of "political bias". Ahem.

Considering how many powerful people seem likely to get caught up in the revelations about Jeffrey Epstein's child-exploitation operation, it seems reasonable to wonder if someone is trying to kill him to keep him quiet.

Millionaire and convicted sex offender Jeffrey Epstein, facing charges of federal sex trafficking, was placed on suicide watch after being found unresponsive and with injuries to his neck at a federal lockup in New York City, according to a law enforcement official briefed on the incident.

Epstein, 66, was discovered injured on Tuesday in his cell at the Metropolitan Correctional Center in Manhattan, where he is being held without bail, the source said.

He was discovered with marks on his neck that appeared to be self-inflicted, the source said.

I've got no evidence for this conjecture, but there are certainly plenty of people with motivation to kill Epstein. If Epstein dies interest in his crimes will dwindle. Let's make sure this guy stays alive long enough to name names.

Andrew C. McCarthy explains what should be obvious: Mueller's complaints about "context" are pointless now that his report is public.

Mueller was annoyed because Barr's report showed Mueller didn't do the job he was retained to do, and omitted all the narrative-writing that Mueller preferred to do.

Before Attorney General Barr issued his letter outlining the special counsel's conclusions, Mueller was invited to review it for accuracy. Mueller declined. After Barr explained that Mueller had not decided the obstruction question, the press reported on this dereliction. Mueller is miffed about the press coverage ... but he can't say Barr misrepresented his findings.

Like the Mueller investigation, this episode is designed to fuel a political narrative. But we don't need a narrative - we don't even need anyone to explain the report plainly. That's because we now have the report. We can read it for ourselves. The rest is noise.

If you don't like Barr's summary then ignore it and go read Mueller's report for yourself.

According to Jeff Carlson at the Epoch Times, the DOJ ruled out charging Hillary Clinton with gross negligence for her mishandling of classified materials. This article is supposedly based on unreleased transcripts of Congressional testimony that the author got access to.

Lisa Page, an FBI lawyer who served as special counsel to Deputy FBI Director Andrew McCabe during the time of the Clinton investigation, noted during her testimony in July 2018, that the DOJ was intimately involved in the investigation.

"Everybody talks about this as if this was the FBI investigation, and the truth of the matter is there was not a single step, other than the July 5th statement, there was not a single investigative step that we did not do in consultation with or at the direction of the Justice Department," Page told congressional investigators on July 13, 2018.

Comey had also hinted at the influence exerted by the DOJ over the Clinton investigation in his July recommendation, stating that "there are obvious considerations, like the strength of the evidence, especially regarding intent."

Intent is a requirement of several statutes the FBI was looking into. But intent is specifically not a factor under the charge of gross negligence--contained within 18 U.S. Code § 793(f)--a fact that was brought up by Rep. John Ratcliffe (R-TX) during Page's testimony:

Rep. Ratcliffe: Okay. And that's -- I think, when you talk about intent, that's certainly true under part of 18 793(f), but it sounds like you all just blew over gross negligence.

Ms. Page: We did not blow over gross negligence. We, in fact -- and, in fact, the Director -- because on its face, it did seem like, well, maybe there's a potential here for this to be the charge. And we had multiple conversations, multiple conversations with the Justice Department about charging gross negligence.

Page made clear during her testimony that the DOJ had decided that due to "constitutional vagueness" a charge of gross negligence would not be supported without accompanying proof of intent--a seemingly oxymoronic position:

Rep. Ratcliffe: Okay. So let me if I can, I know I'm testing your memory, but when you say advice you got from the Department, you're making it sound like it was the Department that told you: You're not going to charge gross negligence because we're the prosecutors and we're telling you we're not going to --

Ms. Page: That is correct.

Rep. Ratcliffe: -- bring a case based on that.

Copyright terms haven't been extended to protect Mickey Mouse like they were in 1998, but it's hard to celebrate this passive victory for the public domain when the duration is set to 95 years!

As the ball dropped over Times Square last night, all copyrighted works published in 1923 fell into the public domain (with a few exceptions). Everyone now has the right to republish them or adapt them for use in new works.

It's the first time this has happened in 21 years.

In 1998, works published in 1922 or earlier were in the public domain, with 1923 works scheduled to expire at the beginning of 1999. But then Congress passed the Sonny Bono Copyright Term Extension Act. It added 20 years to the terms of older works, keeping 1923 works locked up until 2019.

Many people--including me--expected another fight over copyright extension in 2018. But it never happened. Congress left the existing law in place, and so those 1923 copyrights expired on schedule this morning.

And assuming Congress doesn't interfere, more works will fall into the public domain each January from now on.

That's better than nothing, I guess. Personally, I think a term of 20 or 30 years would be far more reasonable than 95.

Michael Cohen seems like a "rat" but former chairman of the Federal Election Commission Bradley A. Smith says that what Cohen plead guilty to isn't even a crime.

To this intuitively obvious fact -- very few people would think paying hush money is a legitimate campaign expenditure -- those eager to hang a charge on Mr. Trump typically respond that he made the payments when he did because of the looming election. That may be true, but note that the same is true of the entrepreneur, who instructs his counsel to settle the lawsuits pending against him. Further, note that in both cases, while the candidate has no legal obligation to pay at all, the events that give rise to the claim against him are unrelated to the campaign for office. Paying them may help the campaign, but the obligations exist "irrespective" of the run for office. Mr. Trump's alleged decade-old affairs occurred long before he became a candidate for president and were not caused by his run for president.

Further clinching the case, in writing its implementing regulations for the statute, the Federal Election Commission specifically rejected a proposal that an expense could be considered a campaign expenditure if it were merely "primarily related to the candidate's campaign." This was done specifically to prevent candidates from claiming that things that benefitted them personally were done because they would also benefit the campaign. And with that in mind, it is worth noting Mr. Cohen's sentencing statement, in which he writes that he "felt obligated to assist [Trump], on [Trump's] instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives that would adversely affect the Campaign and cause personal embarrassment to Client-1 and his family." (Emphasis in original.)

Do you think Trump's critics would have been satisfied if he had used declared campaign money to pay off his mistresses? I don't.

John Hinderaker suggests that under this new theory there are many more illegal campaign contributions yet to be found.

If we are going to start prosecuting illegal campaign contributions-sadly, too late to go after Barack Obama's two scofflaw campaigns-maybe we should begin by charging Google and its executives with federal crimes. Earlier today, Google's CEO, Sundar Pichai, testified before the House Judiciary Committee on, among other things, Google's apparent attempt to help Hillary Clinton win the 2016 presidential election. Tyler O'Neil at PJ Media reports:

On Tuesday, Google CEO Sundar Pichai struggled to respond to Rep. Jim Jordan (R-Ohio)'s persistent questions about an email from Google's former head of multicultural marketing, Eliana Murillo, reporting that the company attempted to push out the Latino vote "in key states" during the 2016 election. Murillo's email, reported by Fox News's Tucker Carlson, essentially admitted that Google had given Hillary Clinton an in-kind donation during that key election.

I look forward to all the upcoming prosecutions that this new interpretation of the law will lead to -- finally one sure way to get money out of politics!

Dahlia Lithwick's angst-ridden lament for the Kavanaugh-confirmed Supreme Court is a fantastic illustration of how Leftists view themselves as neutral centrists.

Constitutional law professors have been wondering aloud how they can neutrally teach case law after signing a letter opposing Kavanaugh's elevation (over 2,400 professors nationwide did so). Some say they believe the court has now been irredeemably politicised.

As if the professors could have taught in a non-political manner if they had kept their anti-Kavanaugh bias secret? The court hasn't just now been politicised, it has been politicised at least since Bork was Borked by Ted Kennedy.

Whether Roberts proves to be a fifth vote to strike down protections for abortion, affirmative action, and to curb voting rights with the stroke of a pen, or merely to check these rights in small but certain steps, those rights will be limited. He will be the fifth vote to shrink the authority of regulatory agencies; the fifth vote to protect business over workers' rights; the fifth vote to chip away at gun regulations; and, the fifth vote to allow religious dissenters to opt out of civil rights and public accommodation laws. We don't know how or when this will happen, but happen it will.

Lithwick casts these issues in a way that portrays the Leftist preference as "neutral" and the shift she predicts as an aberration. A conservative can play the same game.

• "strike down protections for abortion" becomes "uphold protections for the unborn"
• "strike down protections for affirmative action" becomes "enforce equal laws equally without regard for race"
• "curb voting rights" becomes "prevent voter fraud"
• "shrink the authority of regulatory agencies" becomes "limit the federal government to its Constitutionally defined role"
• "chip away at gun regulations" becomes "protect Americans' natural right to self-defense, as guaranteed by the Second Amendment"
• "allow religious dissenters to opt out of civil rights and public accommodation laws" becomes "protect Americans' natural right to religious freedom, as guaranteed by the First Amendment"

The Leftist preference isn't the natural, "neutral", "centrist" order of the world.

This president--who lost the popular vote--has now seated two Supreme Court justices. Four sitting justices have been confirmed by Republican senators who collectively won fewer popular votes than the senators who voted against confirming them. A minority-majority president and a minority-majority Senate have remade the court in their own image, and completed that process by installing a singularly divisive nominee.

In August (before the Kavanaugh agony) Michael Barone encouraged Democrats to play by the rules rather than denouncing them, and his stats undermine Lithwick's complaint.

The Democrats argue that they've been winning more votes but don't control the federal government. They've won a plurality of the popular vote in six of the last seven presidential elections, but have elected presidents in only four of them. That darned Electoral College-- "land," as one liberal commentator puts it -- gave the presidency to George W. Bush in 2000 and Donald Trump in 2016.

Of course, the Gore and Clinton campaigns knew that the winner is determined by electoral votes, not popular votes. But that hasn't stopped many Democrats from calling for changing the rules to election by popular vote.

Or from complaining about the composition of the Senate. A majority of senators, writes ace election analyst David Wasserman, represent only 18 percent of the nation's population. That's because under the Constitution, each state elects two senators, and a majority of Americans today live in just nine states.

It's suggested that the framers didn't expect population to be so heavily concentrated in a few states. Actually, it was similarly concentrated in big states 50, 100, 150 and 200 years ago. And when the framers met in 1787, small states demanded equal Senate representation precisely from fear that the big states would dominate them.

Moreover, small states today aren't uniformly Republican. Vermont, New Hampshire, Rhode Island, Delaware and Hawaii currently send two Democrats to the Senate. Maine, North Dakota, and Montana each send one. The 12 smallest states are represented by 13 Democratic senators and 11 Republicans.

The real problem for Leftists is that their current ideology doesn't have broad appeal, unlike in the days of President #MeToo Clinton.

A party which wants to win more elections might take note of that and look to broaden its support base, rather than plead for impossible constitutional changes and fiddle with fixes that might produce unanticipated negative consequences.

Once upon a time, Bill Clinton showed Democrats how. He won the presidency, from which his party had been shut out for 20 of 24 years, by adapting its platform to appeal to additional voters. In 1996, he won 174 electoral votes in states that his wife was to lose 20 years later.

Bill Clinton carried California twice by the solid margin of 13 points. In 2016 she carried it by 30. But she built up that margin by taking stands that antagonized "deplorables" in Pennsylvania, Ohio, Michigan, Wisconsin and Iowa, and the rest is history.

Back to Lithwick, who completely fails to notice judicial gaslighting by the Left. The Left works itself up into a tizzy, and then uses that tizzy to claim that the Right's preferences aren't legitimate.

But the court will not have so long to recover its standing as a neutral oracle: cases testing the boundaries of Trump's executive authority, his treatment of immigrants and refugees, and possibly, someday even the legitimacy of Special Counsel Robert Mueller's investigation into Russian election meddling will soon pile up on its doorstep. There cannot, for long, be any hiding from the front pages, or from making highly-charged calls.

Attention spans can be short. After the Kavanaugh debacle, however, the Court could find more citizens than ever suspect its practice is directed by partisan convenience, not by law.

Translation: when the SCOTUS rules in favor of the Left, it is "neutral"; when it rules in favor of the Right, it is "partisan".

As Glenn Reynolds has pointed out, the Left should be thankful that the Right doesn't advocate for a "living Constitution" approach to the judiciary.

I'll resist the urge to make a Strzok/"struck" pun, but here are three takes on the man's Congressional testimony.

First, Andrew C. McCarthy says that his testimony illustrates that the Congressional investigations are a farce.

The principal question before the joint investigation of the House Judiciary and Oversight Committees is whether the Democratic administration's law-enforcement and intelligence arms strained to manufacture an espionage case against the Republican candidate, having buried an eminently prosecutable criminal case against the Democratic presidential nominee.

It should be straightforward to answer this question, provided that the investigative process has the one attribute central to any credible probe: the capacity to compel the production of evidence and testimony, with the corollary power to hold witnesses in contempt for defiance.

The House investigation has devolved into farce because it lacks this feature.

Second, Mark Penn highlights the flat-out lies by "deep state" actors.

I've seen President Clinton deny he had a relationship with "that woman, Miss Lewinsky." I've seen President Obama assure people they will get to keep their doctor under ObamaCare. And I've seen former press secretary Sean Spicer declare that President Trump's inaugural crowd was larger than Obama's.

But these falsehoods pale in comparison to the performances of a series of "deep state" witnesses who have combined chutzpah with balderdash, culminating so far in the testimony of FBI agent Peter Strzok.

Let's review just some of the highlights.

Third, Michael Goodwin says that while the whole FBI isn't rotten, the head sure was.

Then there is Comey's successor, Wray. He looks as if he wandered into the wrong movie theater and can't find the exit.

He defined himself as unwilling to tackle the mess he inherited by downplaying the devastating inspector general report on the handling of the Clinton investigation. While conceding the findings made it "clear we've got some work to do," he minimized them by saying, "It's focused on a specific set of events back in 2016, and a small number of FBI employees connected with those events. Nothing in the report impugns the integrity of our workforce as a whole, or the FBI as an institution."

Baloney. While it's true only a fraction of the total employees were singled out, they were the director of the FBI, his top deputy, the deputy's top lawyer and Strzok, the head of counterintelligence.

Others were also faulted, but not named, including an agent who tried to get his son a job on Clinton's campaign while sending campaign boss John Podesta "heads up" emails.

As much as leftists decry originalism, they should be careful what they wish for: they'd really hate a right-wing "living Constitutionalist".

But Barnett made another point that's worth thinking about here: What if right-leaning jurists listened to their critics on the left, and adopted a "living Constitution" approach instead of relying on what the Framers understood the text to mean? As Barnett asks: "Why would you possibly want a nonoriginalist 'living constitutionalist' conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn't you rather a conservative justice consider himself constrained by the text of the Constitution like, say, the Emoluments Clause?"

Reynolds speculates about new individual rights and government limitations a right-wing "living Constitutionalist" might find/create, and it's a pretty persuasive argument for originalism.

In another 5-4 decision, SCOTUS ruled this morning that members of public employee unions can't be forced to pay for political speech. These kinds of decisions are exactly why many people voted for Trump instead of Hillary.

In 1977, when public sector unions were getting established, the high court said teachers and other public employees may not be forced to pay full union dues if some of the money went for political contributions. But the justices upheld the lesser fair share fees on the theory that all of the employees benefited from a union contract and its grievance procedures.

But today's more conservative court disagreed and said employees have a right not to give any support to a union. These payments were described as a form of "compelled speech" which violates the 1st Amendment.

The anti-union National Right to Work Foundation, which funded the challenge, predicted the ruling would free more than 5 million public employees from supporting their unions.

For the unions, which traditionally support Democrats, the ruling will mean an immediate loss of some funding and a gradual erosion in their membership. Union officials fear that an unknown number of employees will quit paying dues if doing so is entirely optional.

An organization that takes your money by force as a condition of employment is inherently unjust. Voluntary associations of all kinds -- unions, governments, churches, corporations, clubs -- should be protected, but no one should be forced to join or fund something against their will. This is liberty 101.

Sharyl Attkisson has a brilliant recasting of the "Russia investigation" as if it were an attempted bank robbery and the government decided to investigate the bank instead of the robbers, and then didn't even bother to prevent the robbery.

Once upon a time, the FBI said some thugs planned to rob a bank in town. Thugs are always looking to rob banks. They try all the time. But at this particular time, the FBI was hyper-focused on potential bank robberies in this particular town.

The best way to prevent the robbery -- which is the goal, after all -- would be for the FBI to alert all the banks in town. "Be on high alert for suspicious activity," the FBI could tell the banks. "Report anything suspicious to us. We don't want you to get robbed."

Instead, in this fractured fairytale, the FBI followed an oddly less effective, more time-consuming, costlier approach. It focused on just one bank. And, strangely, it picked the bank that was least likely to be robbed because nobody thought it would ever get elected president -- excuse me, I mean, because it had almost no cash on hand. (Why would robbers want to rob the bank with no cash?)

Just go read the whole thing.

FBI leakers admit to spying on Trump campaign 100 days before the election. The purpose of the leaks to to cover-their-butts in advance of the Inspector General report.

It's been nearly 24 hours since it has been revealed to the world that President Barack Obama's Justice Department conducted a counterintelligence investigation on the Trump campaign. The investigation began 100 days before the presidential election and was executed with all the traditional tools of spy trade-craft including informants (spies) and electronic surveillance (wire tapping.)

These stunning revelations were memorialized in the bible of the Mainstream Media: It was written in the Gospel According to the New York Times.

Obama Director of National Intelligence James Clapper says it's "a good thing" that Obama was spying on his political opponent.

Clapper admitted the FBI "may have had someone who was talking to them in the campaign," referring to President Trump's 2016 presidential campaign. He explained away the possibility of an FBI informant spying on the campaign as the bureau was trying to find out "what the Russians were doing to try to substantiate themselves in the campaign or influence or leverage it."

Obama's Director of National Intelligence then went on to say, "So, if there was someone that was observing that sort of thing, that's a good thing."

Mollie Hemingway dissects the NYT article based on the leaks.

This is a stunning admission for those Americans worried that federal law enforcement and intelligence agencies might use their powers to surveil, leak against, and target Americans simply for their political views or affiliations. As Sean Davis wrote, "The most amazing aspect about this article is how blasé it is about the fact that the Obama admin was actively spying on four affiliates of a rival political campaign weeks before an election."

The story says the FBI was worried that if it came out they were spying on Trump campaign it would "only reinforce his claims that the election was being rigged against him." It is easy to understand how learning that the FBI was spying on one's presidential campaign might reinforce claims of election-rigging.