Law & Justice: April 2012 Archives

Jon Corzine is getting away with stealing $1.6 billion because of his political connections. Meanwhile a man goes to federal prison for whistling at a whale.

John Hinderaker proposes an alternative to Obama's "Buffett Rule": how about the "Geithner Rule"?

President Obama has now admitted that the "Buffett Rule," formerly the centerpiece of his re-election campaign, is a silly gimmick that will raise hardly any money for the treasury. (Actually, it might cost the federal government money, as increases in the capital gains rate have been known to do.) So how about if, instead, we start talking about the Geithner Rule, which is: everyone pays what he owes under existing laws? ...

Most tax evaders don't wind up in prison. In fact, some wind up working for the government. Take Tim Geithner. Geithner, Obama's Secretary of the Treasury, is a tax cheat. When he worked for the International Monetary Fund, the fund did not pay withholding taxes on his income, but rather paid Geithner a specifically-designated additional amount which Geithner was supposed to use to pay self-employment taxes. Geithner kept that money, but didn't pay the taxes. Byron York explains: ...

Short version: The International Monetary Fund paid Geithner money to reimburse him for taxes he was supposed to pay. Geithner took the reimbursement but never paid the tax.

When the IRS audited Geithner, he paid what he owed for 2003 and 2004. But he didn't pay what he owed for 2001 and 2002. Why? Because the statute of limitations had run on those years, so the IRS couldn't sue him to collect the money or charge him criminally for failing to pay it. Only when he was nominated as Secretary of the Treasury did Geithner go back and pay what he owed for 2001 and 2002.

If it bothers you that our Treasury Secretary is a tax cheat then buy a TAX CHEAT! stamp and stamp it over his name on your currency.

Tim Lynch explains that stand-your-ground laws are an important protection for crime victims but are not a license to provoke a fight and then kill the other person without repercussion.

With respect to incidents outside the home, the Stand Your Ground statutes clarify the law for innocent persons by dispensing with any legal obligation to retreat, hence the name, "Stand Your Ground." What has been overlooked is the fact that the statute only applies to a person under "attack." Again, the rationale is that it is bad enough for an innocent person to find himself under attack by a criminal, but to then have to worry about whether the law requires a retreat is simply too much to ask. As Justice Oliver Wendell Holmes once observed, "detached reflection cannot be demanded in the presence of an uplifted knife." The Florida law says that if you are under attack, retreat if you like, but be assured that you may also stand your ground and fight back if that seems to be the best option. ...

When Zimmerman made the fateful decision to disregard the police dispatcher's statement to await the arrival of the police and not to follow his "suspect," he was acting outside and beyond the Stand Your Ground law. Other legal principles enter the picture and those principles run against Zimmerman. By following Martin, Zimmerman's actions set up the perilous confrontation. Consequently, he will likely be seen as an aggressor in the eyes of the law. Even if Martin threw the first punch, that punch will likely be considered the result of Zimmerman's provocation. Since Martin was unarmed, a gunshot in response to non-deadly force (fisticuffs) will probably be deemed beyond the bounds of normal self-defense. (The Florida legal system will have to consider all of the available evidence and ultimately determine Zimmerman's legal responsibility.)

I don't know what facts will be presented to a jury, but I bet this will be a complicated case for them to work out. If Zimmerman provoked the fight and then shot Martin when when Zimmerman started losing, then the shooting was not self-defense. But Martin might also have been in the wrong if his actions escalated from self-defense to delivering a beating to a prone/pinned Zimmerman. There's no reason why both men can't be guilty.

Piracy off the Eastern coast of Africa continues but at a dwindling pace.

After two years of immense prosperity, the last year has been a disaster for the Somali pirates. For example, in the last eight months, only six ships have been captured, compared to 36 ships in the same eight month period a year ago. Pirate income is down 80 percent and expenses are up. Pirates have to spend more time at sea looking for a potential target, and when they find one, they either fail in their boarding efforts (because of armed guards, or better defense and more alert crews) or find anti-piracy patrol warships and armed helicopters showing up. Unlike in the past, the patrol now takes away the pirates weapons and equipment, sinks their mother ships and dumps the pirates back on a beach. The pirates claim that some members of the anti-piracy patrol simply kill pirates they encounter on the high seas (some nations have admitted doing this, at least once, in the past). But no one does this as official policy, and the rules are still basically "catch and release." The big change is that the patrol has become much better at detecting pirates, on captured fishing ships, and shutting these pirates down. Often the pirates bring along the crew of the fishing ships, to help with the deception. But the patrol knows which fishing ships have "disappeared" and quickly identify those missing ships they encounter, and usually find pirates in charge. The anti-piracy patrol also has maritime reconnaissance aircraft that seek to spot mother ships as they leave pirate bases on the north Somali coast, and direct a warship to intercept and shut down those pirates. The pirates have been losing a lot of equipment, and time, and money needed to pay for it.

I don't like the idea that there's a "tolerable" level of piracy, but that seems to be the most pragmatic course available.

The bottom line is that the pirate attacks, even if they took two or three times as many ships in their peak year, would not have a meaningful economic impact on world shipping. Total cost to shipping companies (ransoms, extra fuel, security equipment and services) is over $10 billion a year. For example, the international anti-piracy patrol in the Gulf of Aden costs $500 million a year, a fraction of a percent of the defense budgets of the nations involved. Politicians and bureaucrats can stand that kind of pain, and will likely do so and refrain from doing anything bold in Somalia.

Decisively dealing with pirates would necessarily harm civilians as well, and no one wants to get branded as a war criminal. So, the piracy continues.

President Obama said it was "unprecedented" and "extraordinary" for the Supreme Court to overturn a law passed by Congress, and now the Fifth Circuit is asking him to explain his position on the power of judicial review.

Here's a bit of transcript from this morning's oral argument in Physicians Hospital of America v. Sebelius, a case involving a challenge to the Affordable Care Act:

Judge Jerry E. Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Dana Lydia Kaersvang (DOJ Attorney): Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I'm referring to statements by the President in the past few days to the effect...that it is somehow inappropriate for what he termed "unelected" judges to strike acts of Congress that have enjoyed - he was referring, of course, to Obamacare - what he termed broad consensus in majorities in both houses of Congress.

That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that's not a small matter. So I want to be sure that you're telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there's no -

Smith: I would like to have from you by noon on Thursday...a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the President, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the President's statements and again to the position of the Attorney General and the Department of Justice.

Aside from my belief that much of what President Obama says is useless and information-free, it's great to see a politician actually held to account for the dumb things he said. I wonder if the DOJ will actually fulfill this order or ignore it?