HORIST: The rule-of-law and other civic fictions … case by case
I wish our politicians and press would STOP making references to the “rule-of-law” or that claim that “no man is above the law” as if they are some rigid inviolable system of governance. Yes, we have laws, but they are written, interpreted and enforced arbitrarily by police officers, prosecutors, judges and juries. The so-called “letter of the law” means very little.
Because politics is founded on hypocrisy, we have our politicos capriciously shifting from strict interpreters of the law as written to agonizing interpretations that have no relationship to the meaning of the words.
Here are some examples
President Trump’s tax returns
When it comes to the legal right of the Chairman of the Ways and Means Committee to obtain the tax returns of any person – including the President of the United States – Democrats cite one partial sentence to be strictly interpreted. It states that “… the Secretary shall furnish such committee with any return or return information specified.”
Sounds simple if you can read with at least an eighth-grade English comprehension. New York University Law Professor Daniel Shaviro sees little room for disagreement. He wrote:
“This is not an issue on which there is any possibility of reasonable disagreement. Any well-informed person who disagrees either that the Ways and Means Committee has an obligation to demand Trump’s tax returns as part of fulfilling its oversight duties or that Trump is legally obliged to turn them over is either a partisan hack or contemptuous of the rule of law.”
There is that old rule-of-law again. Apart from his obvious arrogance, Shaviro’s opinion makes him sound like … well … a partisan hack. But what can we expect from a professor at New York University? So, why do President Trump’s folks – including a lot of lawyers with better resumes than Professor Shaviro — say, “not so?”
First, there is that itty-bitty “or” in the middle of the sentence. That can be seen as meaning the IRS must turn over the tax returns OR information based on the returns SPECIFIED in the request – but not both. That interpretation would suggest that the Chairman of Ways and Means might have to make very specific requests for specific data on specific portions of the tax returns.
There have also been a lot of legal interpretations of that law. Washington Attorney Ross Garber – who teaches a class in political investigations at Tulane University Law School – disagrees with Shaviro. And Garber does not seem to be a political hack or contemptuous of the rule-of-law.
He believes that the House Democrats will not be successful because of some pesky interpretations of the law. According to Kilbourn v. Thompson (1881), Congress will have to prove some “proper legislative purpose” – not a political purpose. That would be debated in the courts all the way up to the Supremes.
As if that is not enough, there is a 1957 case, Watkins v. U.S. in which the high Court ruled that Congress is not … repeat NOT … a law enforcement agency and therefore may not seek information to expose or uncover crimes.
Garber answers the obvious question. If it is unlikely that Congress will ever get Trump’s tax returns, why make the request. According to Garber:
“Despite the bleak outlook for Congress in the short term, there are nevertheless three rational reasons for the committee’s demand. First, as a public relations move it shows the American people, and particularly Democrats, that the House is doing its job and trying to get the president’s tax information. Second, it sets up a negotiation process by which the committee might get some of the information it is seeking. Battles over information between Congress and the executive branch are relatively common, but they almost always end in a negotiated resolution. Third and finally, by making the request, and knowing it will be rejected, the committee is setting up a potential impeachment count against the president.”
This case will go on for months and maybe years until the Supreme Court makes its decision on what the law means. We already know it does not mean what it says.
Julian Assange, the news media and America’s state secrets
In terms of tax returns, Democrats take the law literally based on a few words taken out of context – at least until the political polarities should change on the issue. In the case of protecting our national secrets, Democrats, bureaucrats, the prosecutors and much of the press prefer to ignore the letter of the law to the point of nullification.
In 1924, the Federal Espionage Act was passed to protect America from the arbitrary exposure of our national secrets – intelligence, counter-intelligence, sources and means, military strategies, criminal investigations, grand jury testimony and a whole range of privacy rights.
Just to be clear, here is what the law states.
“Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.”
The law makes it illegal to even improperly possess such material privately. Those with access to such information and data were forbidden to take it home or otherwise bring it out of the security perimeter. Think about that. You are not even allowed to posses it, much less reveal it publicly.
Most notably, the law did not … repeat, NOT … exempt the press. If you read the law as written, virtually every one of those ubiquitous “leaks” you learn about from the news folks is illegal and potentially prosecutable under the rule-of-law and the theory that no person – not even a reporter – is above the law. Yet, federal prosecutors and courts have basically ignored the law – refused to enforce it – in violation of the rule-of-law and making representatives of the news media “above the law.” If the law had been fully enforced, Bob Woodward and Carl Bernstein could have been prosecuted for the information they obtained from Deep Throat – who could have also been charged.
In addition, government officials who disobey the law are rarely prosecuted. Hillary Clinton could have been charged for transferring sensitive and classified information to her off-site personal server – not to mention all that data that wound up on the server of disgraced Congressman Anthony Weiner, husband of Clinton Chief-of-Staff Huma Abedin. We simply do not enforce that law.
No matter how many times the Fourth Estate claims a First Amendment right to publish state secrets, it is not true. The fact that reporters are not hauled into court is not because of a “right,” but because of a long tradition of prosecutorial discretion to not enforce the law as it is written and was intended.
The decision to not prosecute members of the press for revealing state secrets is so ingrained that Julian Assange is not being charged by the United States with publishing illegally obtained government information, but rather with aiding and abetting Chelsea (nee Bradley) Manning with hacking into government computers.
The reason for not pressing executable charges based on the 1924 law is because Assange’s Wikileaks is considered a news outlet. Charge him with exposing secrets, and you have the potential of setting a precedent for all news outlets. It focused too much attention on the unofficial media exemption.
The Mueller Report
This brings us to the law and the Mueller Report. Democrats pander to public curiosity to have the entire unredacted Report presented to Congress – including the millions of pages of underlying documents, testimony and data. They know such an action would be totally illegal. Congress does not have a right to all the information. They have no right to see information that would reveal “sources and methods,” information regarding ongoing investigations and grand jury testimony.
The only good feature of the terrible one-sided grand jury system is that all the testimony is confidential – never to be used in public for political or other purposes. Unfortunately, there is a loophole in that a court can lift the legal ban. Just because it has been done in the past is no reason to continue a very bad practice.
Democrats are pushing for two options. The rule-of-law should be waived by the judiciary – which is supposed to be enforcing it – or just simply ignored.
If you want to look at an area in which Democrats effectively abandon ALL devotion to the rule-of-law, just look at what is happening at the border. Approximately 25 million people are in America illegally. They are flooding our border at the rate of 100,000-plus each month.
While Democrats note that people from other nations can legally seek asylum, they fail to note that once an asylum-seeking does not show up for their vetting hearing, they are illegal. They are breaking the law when they seek illegal employment, vote (and yes, many do) or secure benefits through identity theft.
Democrats protect even the criminal elements by opposing border vetting, providing sanctuary and opposing deportation of those who do not keep their court dates. They oppose detaining (arresting) criminals just because they come over the border with a child.
Put in the most simple terms, the Democrats policy on border security is that no rule-of-law should encumber any foreigner from entering America by any means and for any purpose.
. . . . .
So … the next time you hear all that pompous praise for our rule-of-law and that no man is exempt coming from the left, the proper response is a facetious, “Yeah, right.”
So, there ‘tis.