Gun Control

Perspective on the Barr memorandum.

From Jonathan Turley, the Shapiro professor of public Interest law at George Washington University and a practicing criminal defense attorney.

After reading JT's column, you will appreciate how disingenuous or uninformed are those who claim that Barr's memorandum disqualifies him from being the Attorney General.  In the case of politicians, "disingenuous" is the most likely.

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The Senate confirmation of William Barr to become attorney general should be an easy matter, even in Washington. After all, he previously held the position with distinction.

Unfortunately, the U.S. government may be the only employer where prior experience and prior insights are a liability. The fact that Barr is a brilliant lawyer and previously served as President George H.W. Bush’s attorney general from 1991 to 1993 seems to count for little.

Opponents of President Trump’s nomination of Barr to become attorney general are seizing on a memo Barr sent June 8 to Justice Department officials.

In the memo, Barr expresses his opinion on some legal aspects of Special Counsel Robert Mueller’s investigation of Russia’s interference in the 2016 U.S. presidential election and possible collusion between Russia and the Trump presidential campaign. The president has repeatedly said “there was no collusion.”

Specifically, Barr’s memo discusses allegations that President Trump may have obstructed justice by firing FBI Director James Comey to stop an investigation of Trump-Russia cooperation to help Trump win the presidential election.

Barr’s memo went to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel. The memo identifies what Barr thought was a potentially serious flaw in the use of the most likely federal provision on obstruction of justice that could be used to accuse President Trump of obstructing the Russia probe.

If there was an essay requirement on the job application to become attorney general, Barr’s memo would get him the position. The 19-page single-spaced memo is an extraordinary and insightful analysis of a little-explored part of our criminal code.

Instead, Barr’s willingness to share his views with top Justice Department officials is now being portrayed by opponents of his nomination as somehow disqualifying or a conflict of interest that should prevent him from becoming attorney general again.

“Mr. Barr’s memo reveals that he is fatally conflicted from being able to oversee the Special Counsel’s investigation and he should not be nominated to be attorney general,” Senate Minority Leader Chuck Schumer, D-N.Y., said in a statement. “Mr. Barr believes presidents in general – and more frighteningly, President Trump, who has shown less respect for the rule of law than any president – are above the law.”

Critics are correct about one thing. Everyone should read the memo, first reported by The Wall Street Journal. However, far from being a disqualifying factor, the memo is precisely why Barr should be confirmed.The memo is dispassionate, detailed and insightful. It shows precisely why Barr is widely viewed as a lawyer’s lawyer. Barr thrives on the intricacies of the law. There is nothing casual in legal analysis for Barr, which is anchored to the express language and authority for a given act.

The memo concerns a problem that some of us raised back in 2017 about obstruction allegations concerning President Trump’s firing of Comey as FBI director.

At the time, there was no relevant formal proceeding or grand jury for Trump to obstruct. Mueller would need to allege that Trump’s firing of Comey was designed to obstruct an anticipated proceeding – a very difficult case to make in the best of cases.

Yet President Trump has (at least so far) not been accused of destroying or tampering with evidence – making a case of obstruction against him virtually unprecedented under the law.

The law against obstruction would have to be stretched as it never has been before to show that the president tried to “obstruct, influence or impede” a legal proceeding that had not even begun at the time.

Some of us have noted that there were ample and independent reasons for firing Comey, who was widely denounced by former and current Justice Department officials. Comey came under fire for violating core policies and protocols of the Justice Department regarding the FBI investigation of the scandal surrounding the emails of Democratic presidential candidate and former Secretary of State Hillary Clinton.

After being fired by President Trump, Comey became the best witness against himself. He admitted to removing FBI memos and having a friend leak the contents to the media. He recently admitted to ignoring Justice Department protocols in sending agents to the office of then-National Security Adviser Michael Flynn without informing either then-Acting Attorney General Sally Yates or then-White House Counsel Don McGahn.

Barr, however, focused on another problem involving allegations of obstruction of justice against President Trump. Mueller wants to use the obstruction provision to demand an interview with Trump to learn the president’s “state of mind” when he fired Comey.

Barr questions the statutory basis for Mueller’s theory that the president may have obstructed justice by firing Comey. Barr warns in his memo that the Mueller theory could establish an “unbounded interpretation” where any action influencing a future proceeding could be treated as a potential crime.

In addition, Barr addresses how the Mueller theory would influence future prosecutions for obstruction of justice against executive branch officials – not just President Trump.

If the Mueller theory of obstruction is upheld, Barr argues, it would allow for interrogations of executive branch officials on their motivations in exercising a broad range of discretionary powers.

Barr’s critics ignore that he does not criticize the Mueller investigation as a whole, and ignore this important statement from Barr early in his memo:

“Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function,” Barr states in the memo. “Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.”

Barr’s memo continues: “Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such ‘bad acts’ involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion – such as his complete authority to start or stop a law enforcement proceeding – does not involve commission of any of these inherently wrongful, subversive acts.”

With the above comments, Barr’s memo advances a strong and compelling argument in favor of charging presidents for conduct in office, including the misuse of official powers to destroy evidence or tamper with witnesses.

To say that the Barr memo gives presidents a blank check to do as they please and supports the view that “presidents in general … are above the law,” as Schumer claimed, is a gross mischaracterization of Barr’s memo.

One can disagree with aspects of Barr’s analysis, as I do. I believe that a court could legitimately uphold a subpoena to compel Trump to testify on obstruction.

However, Barr impressively marshals dozens of court decisions, statutory provisions, and Justice Department Office of Legal Counsel opinions to lay out the problem with Mueller’s interpretation of the law regarding obstruction of justice.

More importantly, the Barr memo does not suggest that Barr would interfere with Mueller’s investigation.

First, if the legal issue of Comey’s firing was raised on the extension of the obstruction provision, it would not be unilaterally answered by Barr but addressed by a wide circle of experts, including Rosenstein, the Office of Legal Counsel and even the Justice Department’s solicitor general.

Just because an attorney general may be skeptical of an interpretation does not mean that the Justice Department will not advance that interpretation, particularly if made by a special counsel.

Mueller, however, will have to make the case that he is making a defensible and reasonable interpretation of the obstruction of justice statute. All prosecutors must make such cases on novel interpretations and show that they are consistent with other positions taken by the Justice Department.

Second, the problems associated with the obstruction theory on Comey’s firing are shared by a wide range of experts. Mueller is unlikely to peg a prosecution of Trump on such an anemic and untested theory.

Finally, on a practical level, there is every indication that the Mueller investigation is wrapping up. Barr might have a role in deciding what to do with the report or reports issued by the special counsel, but it is extremely unlikely that he would have a material impact on Mueller’s obstruction investigation.

Barr is first and foremost an institutionalist. He is the least likely person to shut down the Mueller investigation unilaterally.

What is clear from Barr’s memo is that his primary concern is for the Justice Department, not for President Trump. Barr clearly acknowledges that the president could be charged on a variety of other grounds if supported by evidence.

Barr warns that “in an increasingly partisan environment, these concerns are by no means trivial. For decades, the (Justice) Department has been routinely attacked both for its failure to pursue certain matters and for its decisions to move forward on others.”

In other words, particularly in an age of rage, a crime without limiting principles can easily envelop of the Justice Department and the government as a whole. It is the type of problem that would not concern a partisan, but does concern an attorney general. That is what Barr was and – if there is any sense left in Washington – that is what he will be again in 2019.

FDA Policies Kill

Here is a column by Walter Williams at townhall.com.

WW is on target.

Government health policies are bound to be biased toward no damage at the expense of poorer health.

Government should not be determining what medical treatment you get - you should.

Government should ensure that available information about medical treatments, or the lack thereof, is provided to you.

WW's last paragraph is telling.
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Among the U.S. Food and Drug Administration's responsibilities are approval and regulation of pharmaceutical drugs. In short, its responsibility is to ensure the safety and effectiveness of drugs. In the performance of this task, FDA officials can make two types of errors -- statistically known as the type I error and type II error. With respect to the FDA, a type I error is the rejection or delayed approval of a drug that is safe and effective -- erring on the side of over-caution -- and a type II error is the approval of a drug that has unanticipated dangerous side effects, or erring on the side of under-caution.

Let's examine the incentives of FDA officials. If FDA officials err on the side of under-caution and approve a drug that has unanticipated dangerous side effects, the victims of their mistake will be highly visible. There may be congressional hearings, embarrassment to the agency and officials fired.

It's an entirely different story if FDA officials err on the side of over-caution and either disapprove or delay the approval of a drug that is both safe and effective. In that case, the victims will be invisible. They will have no idea that their suffering could have been eliminated, or in the case of death, their loved ones will have no idea why they died. Their suffering and/or death will be chalked up to the state of medicine rather than the status of an FDA drug application. Their doctor will simply tell them there's nothing more that can be done to help them. The FDA officials go scot-free.

Let's look at some of the history of the FDA's erring on the side of over-caution. Beta blockers reduce the risk of secondary heart attacks and were widely used in Europe during the mid-1970s. The FDA imposed a moratorium on approvals of beta blockers in the U.S. because of their carcinogenicity in animals. Finally, in 1981, the FDA approved the first such drug, boasting that it might save up to 17,000 lives per year. That means that as many as 100,000 people died from secondary heart attacks waiting for FDA approval. (http://tinyurl.com/ydxpvd54). Those people are in the "invisible graveyard," a term to describe people who would have lived but died because the cure that could have saved them was bottled up in the FDA's regulatory process.

Today, the Phoenix-based Goldwater Institute is leading the battle to bring some sanity and compassion to the drug approval process. It recently published a paper by Mark Flatten, titled "Studied to Death: FDA Overcaution Brings Deadly Consequences." Flatten examined the FDA's approval process and made some important recommendations. Flatten criticized some FDA practices, saying, "Instead of having to prove a new treatment is safe for its intended use, the FDA now reviews drugs based on how they might be used by doctors to treat individual patients, effectively substituting the judgment of agency regulators for that of practicing medical professionals." He added: "Instead of proving a drug achieves the medically beneficial results that its makers claim, the FDA requires proof the new treatment will improve long-term outcomes. So it is no longer enough, for instance, to prove a new drug will reduce blood glucose levels for diabetics. Drugmakers must show, somehow, that this will make patients live longer."

One Goldwater Institute suggestion is to allow drugs approved in certain other countries, such as Canada and the European Union, to receive nearly automatic U.S. approval. After all, those countries have drug regulatory structures similar to that in the U.S. Why should treatments approved in those countries not be available here?

The Goldwater Institute is also calling for a bill to restore free speech in medicine. It thinks Congress should allow drug manufacturers to provide information about "off-label use." This is a common practice in which doctors prescribe FDA-approved drugs to treat conditions other than those the FDA originally approved them for after new beneficial uses arise.

Strong evidence of FDA over-caution bias comes in the 1974 words of then-FDA Commissioner Alexander M. Schmidt: "In all of FDA's history, I am unable to find a single instance where a congressional committee investigated the failure of FDA to approve a new drug."

Freedom takes another hit

Here is a column from Jonathan Turley's blog.

Too many people fail to appreciate the nature of freedom.  They may once the current trend of reducing it goes far enough.  By then, it may be too late.

What is clear is that the United States is no longer free.
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I have been critical of the widening charges of cultural appropriation and microaggressions on our campuses as statements and even programs are targeted with little resistance from faculty or administrators. We previously discussed how yoga classes were denounced in Ottawa as cultural appropriation. Now American University in Washington has become embroiled in the same charge after a single student objected to white individuals performing an Indian epic as part of university’s Bhakti yoga group. American University student Maya Krishnan seems to believe that the school should limit performances on the basis of race and national origin — and that objection appears to have succeeded with the dissolution of the group as well as the resignation of the group’s faculty adviser, student president and vice president.

Krishnan filed a complaint with the President’s Council on Diversity and Inclusion on white people daring to perform an Indian epic. She then wrote an op-ed in the student paper, The Eagle on the performance of “The Ramayana,” by American University’s Bhakti Yoga Club. She complained that “Having my culture represented by an almost entirely white troupe of dancers is incredibly frustrating.” While that frustration would seem discriminatory on the basis of race and national origin, Krishnan was somehow excused by declaring it’s all cultural appropriation. Indeed, Krishnan simply rejects the notion that such groups are celebrating her cultural: “Additionally, the director and other representatives of the theater company absolve themselves of cultural responsibility by saying that the point of the show is to increase exposure of Hinduism and its traditions.”

The Bhakti Yoga Club had invited Viva Kultura, a multinational performing arts group, to perform”The Ramayana.” However, Krishnan could not see beyond the race and national origin of the performers. Indeed, it did not matter to her if the epic was performed perfectly because the performers were the wrong race. Indeed even converting to the religion seemed to be an effort to rob Krishnan of her “intersectional experience’:

The sponsors of this show and the artists acted as if their actions were acceptable because they have converted to the Hare Krishna sect of Hinduism. The reality of this is that white European dancers will never know my intersectional experience as a Hindu woman, being a brown bodied person and the other aspects of systematic racism that I, as well as other South Asian people, have experienced. These people will never know my experience and will never have to think about knowing it. To place their narrative over mine and other people who practice Hinduism is a disservice.

Instead of defending (and encouraging) the right of all students and faculty to immerse and participate in such performances, American University was largely silent as the race of its students and faculty was used in this fashion.

Ironically, we discussed not long ago how the show “Hamilton” has refused to audition white performers despite anti-discrimination laws. Of course the original figures were white but the performance has been confined to minority performers. That was generally accepted as artistic license. Moreover, there is a common practice now in rejecting race as limiting actors like confining Shakespeare plays to white performers.

This brings us back to American and the perception that students are limited by race or national origin by what they can experience and perform. The school should expressly support students and clubs that reject limitation based on such criteria.

Jonathan Turley puts Comey in Perspective

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.  He is not a Conservative.

Here is his column from his blog.

The message is twofold.  First, Comey lacks a moral center.  Second, so do those that approve of his behavior.

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“I probably wouldn’t have … gotten away with it.” Those words this week from former FBI Director James Comey could well be chiseled in marble as his epitaph. He was explaining another violation of bureau policy during his tenure days after meeting behind closed doors with House members.

What was shocking was not that Comey violated protocols or policies again but the reaction of the audience to his admission. In describing how he set up a critical meeting with Michael Flynn, former national security adviser to President Trump, the audience was audibly thrilled by his cleverness in keeping Flynn unrepresented by legal counsel and unaware of the true nature of the meeting. Scheduled to testify to House members again next week, Comey may find a less rapturous reception in Congress.

In his interview in New York City, Nicole Wallace asked him, “It’s hard to imagine two FBI agents ending up in the State Room. How did that happen?” The audience erupted when Comey said dryly, “I sent them. Something we’ve, I probably wouldn’t have done or maybe gotten away with in a more organized investigation, a more organized administration. In the George W. Bush administration … or the Obama administration, two men that all of us, perhaps, have increased appreciation for over the last two years. In both of those administrations there was process.” He revealed, “So if the FBI wanted to send agents into the White House itself to interview a senior official, you would work through the White House counsel and there would be discussions and approvals and it would be there. I thought, ‘It’s early enough, let’s just send a couple of guys over.’”

Just send a couple of guys over. One line could not more aptly capture Comey and his own professed view of “ethical leadership.” The interview confirmed what some of us have written about Comey for more than two years. The media consistently reinforced his image as a rules driven and principled public servant, often referring to him as an almost naive Eagle Scout. The Washington Post even ran the headline, “Boy Scout James Comey is no match for Donald Trump.” Yet, the history of Comey shows both an overriding interest in his own actions as well as a willingness to violate rules to achieve that interest. But his comments, including a call to the public to defeat Trump in a “landslide” in the next election, have stripped away any remaining pretense. The fact is, there often was more pretense than principle in his final years as director.

Consider his conduct during the 2016 presidential election, leading up to his controversial press conference and public announcements, which were widely condemned by both Republicans and Democrats. As here, Comey failed to inform the Justice Department or the attorney general of his intended action. In doing so, he was far outside the clear policies and protocols. Indeed, the first public act of Deputy Attorney General Rod Rosenstein was to issue a memo excoriating Comey for his “serious mistakes” and citing former federal judges, attorneys general, and leading prosecutors who believed that Comey “violated longstanding Justice Department policies and tradition” along with “his obligation to ‘preserve, protect and defend’ the traditions of the department and the FBI.” Rosenstein further added that Comey “refused to admit his errors.”

Then there was Comey’s response to being fired. He removed memos on his meetings with President Trump related to the Russia investigation, then leaked those to the media. The Justice Department rejected Comey’s claims that these were his memos, not FBI material. Some of the material was classified. He violated core FBI rules in removing the memos, and the man tasked to find leakers became a leaker as soon as it suited his own interests. He also undermined the investigation by revealing to Trump and others that the memos existed, information that investigators likely preferred to remain secret before they conducted key interviews.

Then Comey published a book, a sharp departure from prior directors, that discussed the ongoing Russia investigation. He did not pause before rushing it to the shelves, revealing details of the investigation and various meetings while making a fortune for himself. Now Comey has again admitted to violating rules and protocols, by setting up Flynn. Ironically, Comey criticized Trump for breaking protocols in meeting with him alone and asking about an ongoing investigation. He was right in that criticism because there is a formal process for communications between the FBI and the White House. Yet, the same protocols go the other way. If the FBI seeks to interview White House officials in an investigation, they go through the Justice Department, which communicates with White House counsel to arrange the interview. He evaded both in ordering the move.

What was Comey’s justification? Because he could. He refers to the “process” of other administrations. That process, however, was still in place and did not change. Moreover, he noted that he thought he could get away with it because this was “early” in the administration. That is not principle. It is opportunism. He was supposed to work through the Justice Department and not simply follow the rules only if he might be caught breaking them. Former Acting Attorney General Sally Yates is cited in some recently released FBI material as being irate over his decision.

There is a reason for the policy of conferring with counsel. It protects not just the individual but the institution. It prevents rogue or impulsive actions and maintains a clear chain of command within the Justice Department. It is part of the internal rules in how the components of the executive branch function and communicate with each other to preserve both independence and proper review. It is part of the very delicate relationship that Comey accused Trump of violating. There was nothing noble in Comey seeking to reduce the chance that Flynn might have legal counsel. Those same liberals applauding him wildly would presumably be appalled if a police detective proudly described how he prevented a criminal suspect from speaking to a lawyer simply because he could.

Flynn ultimately bears responsibility for any false statements. As special counsel Robert Mueller noted in a court filing, he should have known better, and we should not forget that Flynn ultimately pleaded guilty to lying. However, that does not mean the circumstances or the conduct of FBI officials are irrelevant. The agents, including Andrew McCabe and Peter Strzok, who were both later fired by the FBI for their actions in this investigation, admitted that they discussed warning Flynn about criminal liability for false statements. They warned other witnesses, like former Trump campaign aide George Papadopoulos. Yet, they not only omitted that warning with Flynn but did not raise a conflict in his denying that sanctions were discussed with Russian diplomats. They also encouraged Flynn not to bring a lawyer or to inform the White House counsel. Instead, they arranged a meeting just hours after a telephone call with McCabe.

Ultimately, the agents recounted that they did not believe Flynn deliberately lied at the time. Moreover, Flynn told McCabe that he assumed McCabe had read the full transcript of his conversation with the Russian ambassador, an apparent reference to his knowledge that Russian embassy phones were tapped. The comment further raises the question of why Flynn would lie about discussing sanctions if he recalled the discussion and knew of the wiretap. Yet, Comey seemed to delight the audience by taking credit for keeping Flynn in the dark about the FBI interview. When Wallace asked what Flynn thought the FBI agents wanted, Comey replied, “I don’t think he knew. I know we didn’t tell him.” Actually, Comey didn’t tell anyone. Not the White House counsel, not the acting attorney general, not the Justice Department. He “just sent a couple of guys over” to the White House because he could “get away with it.”

A convincing climate change theory

Henrik Svensmark explains his work on climate change.

The LINK.

My impression is that you don't hear about Svensmark's work because it implies less importance for the kinds of climate change assessments you do hear about.

This video should convince you that climate change as bandied about in the media is not "settled science" and that those who throw out the term "climate denier" are really the ones who are denying the likely validity of other explanations.

My view is that those who use the term "climate denier" or "settled science" are not credible.

Miseducated or Stupid?

Walter Williams gets it right at Townhall.

As to miseducated or stupid - if it is only the former, facts and logic should prevail.  They seldom seem to.
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A recent Victims of Communism Memorial Foundation survey found that 51 percent of American millennials would rather live in a socialist or communist country than in a capitalist country. Only 42 percent prefer the latter. Twenty-five percent of millennials who know who Vladimir Lenin was view him favorably. Lenin was the first premier of the Union of Soviet Socialist Republics. Half of millennials have never heard of Communist Mao Zedong, who ruled China from 1949 to 1959 and was responsible for the deaths of 45 million Chinese people.

The number of people who died at the hands of Josef Stalin may be as high as 62 million. However, almost one-third of millennials think former President George W. Bush is responsible for more killings than Stalin. By the way, Adolf Hitler, head of the National Socialist German Workers' Party, was responsible for the deaths of about 20 million people. The Nazis come in as a poor third in terms of history's most prolific mass murderers. According to professor Rudolph Rummel's research, the 20th century, mankind's most brutal century, saw 262 million people's lives destroyed at the hands of their own governments (http://tinyurl.com/lu8z8ab).

Young people who weren't alive during World War II and its Cold War aftermath might be forgiven for not knowing the horrors of socialism. Some of their beliefs represent their having been indoctrinated by their K-12 teachers and college professors. There was such leftist hate for former President George W. Bush that it's not out of the question that those 32 percent of millennials were taught by their teachers and professors that Bush murdered more people than Stalin.

America's communists, socialists and Marxists have little knowledge of socialist history. Bradley Birzer, a professor of history at Hillsdale College, explains this in an article for The American Conservative titled "Socialists and Fascists Have Always Been Kissing Cousins." Joseph Goebbels wrote in 1925, "It would be better for us to end our existence under Bolshevism than to endure slavery under capitalism." This Nazi sentiment might be shared by Sen. Bernie Sanders and his comrade Rep.-elect Alexandria Ocasio-Cortez. Goebbels added, "I think it is terrible that we and the Communists are bashing in each other's heads."

When the tragedies of socialist regimes -- such as those in Venezuela, the USSR, China, Cuba and many others -- are pointed out to America's leftists, they hold up Sweden as their socialist role model. But they are absolutely wrong about Sweden. Johan Norberg points this out in his documentary "Sweden: Lessons for America?" Americans might be surprised to learn that Sweden's experiment with socialism was a relatively brief flirtation, lasting about 20 years and ending in disillusionment and reform. Reason magazine reports: "Sweden began rolling back government in the early 1990s, recapturing the entrepreneurial spirit that made it a wealthy country to begin with. High taxation and a generous array of government benefits are still around. But now it's also a nation of school vouchers, free trade, open immigration, light business regulation, and no minimum wage laws." School vouchers, light business regulation and no minimum wage laws are practices deeply offensive to America's leftists.

Our young people are not the first Americans to admire tyrants and cutthroats. W.E.B. Du Bois, writing in the National Guardian in 1953, said, "Stalin was a great man; few other men of the 20th century approach his stature." Walter Duranty called Stalin "the greatest living statesman" and "a quiet, unobtrusive man." There was even leftist admiration for Hitler and fellow fascist Benito Mussolini. When Hitler came to power in January 1933, George Bernard Shaw described him as "a very remarkable man, a very able man." President Franklin Roosevelt called Mussolini "admirable," and he was "deeply impressed by what he (had) accomplished." In 1972, John Kenneth Galbraith visited Communist China and praised Mao and the Chinese economic system. His Harvard University colleague John K. Fairbank believed that America could learn much from the Cultural Revolution, saying, "Americans may find in China's collective life today an ingredient of personal moral concern for one's neighbor that has a lesson for us all."

Are Americans who admire the world's most brutal regimes miseducated or stupid? Or do they have some kind of devious agenda?