Issa Hammers Obama

Look, I'm a lawyer.   I know how to do legal research.   It took me probably about 15 minutes to find the controlling legal precedent defining the scope of executive privilege.   The case is Espy, from the D.C. Circuit.   I noted here that it was astonishing that Attorney General Holder's letter to President Obama failed to cite this case law; not doing so is highly misleading on the central legal point, and any judge would view it as such.

Now Congressman Darrell Issa has cut directly to the point in his letter to Obama released this morning:

Absent from the Attorney General’s eight-page letter were the controlling authorities from the U.S. Court of Appeals for the District of Columbia. As the court held in the seminal case of In re Sealed Case (Espy)... The Committee must assume that the White House Counsel’s Office is fully aware of the prevailing authorities of Espy...

Just so.   The White House Counsel's Office must be aware of Espy as the controlling authority, but they've chosen to ignore it.   Obama's invocation of executive privilege is plainly lawless.

The Great VDH

Victor Davis Hanson has what amounts to a summary of the debacle that is the Obama Administration.   Read the whole thing, here is a key passage on the economy:

As we see in New Jersey, Ohio, Texas, and Wisconsin, the cure for the present economic malaise is not rocket science — a curbing of the size of government, a revision of the tax code, a modest roll back in regulation, reform of public employment, and holding the line on new taxes. Do that and public confidence returns, businesses start hiring, and finances settle down. Do the opposite as we see in Mediterranean Europe, California, or Illinois over the last decade and chaos ensues.

Obama took a budding recovery in June 2009 and through massive borrowing, the federal takeover of health care, new expansions of food stamps and unemployment insurance, the curtailing of oil and gas leasing on public lands, new regulations, and non-stop demagoguery of the private sector slowed the economy to a crawl. His goal seems not to restore economic growth per se, but to seek an equality of result even if that means higher unemployment, and less net wealth for the poor and middle classes. Obama hinted at that in 2008 when he said he would raise capital gains taxes even if it meant less revenue, given the need for ‘fairness.’ Indeed, equality is best achieved by bringing the top down rather than the bottom up. Nowhere is the Obama model of massive borrowing, vast increases in the size of the state, more regulations, and class warfare successful — not in California or Illinois, not in Greece, Spain, or Italy, not anywhere.

Lolo!

Lolo Jones managed to eke onto the Olympics team, finishing third in the U.S. Olympic trials 110 meter hurdles competition.   An amazing race -- Jones ran 12.86, but the eighth place woman ran 13.02.   At that speed (roughly 10 meters a second when they are fully accelerated), that means that five different women lost out on their Olympic dreams by less than 1.5 meters, or about 5 feet.   To work that hard and lose out on a dream (or succeed) by a whisker... that's what makes sports so compelling!

Here's the race:

No Obamacare Ruling Today!

The Supreme Court kicked the Obamacare decision further down the road (until Thursday at the latest).  

The Court upheld the Ninth Circuit's ruling invalidating most of Arizona's immigration enforcement law, permitting only Arizona police officers from checking the immigration status of individuals they've stopped. All the rest was pre-empted by federal immigration law, including state laws criminalizing being an illegal.  Probably the right decision, although states on the border witih Mexico have a right to be frustrated by the federal government's poor efforts at immigration enforcement.

The decision in Arizona included Kennedy and Roberts in the majority, with Sotomayor, Breyer and Ginzberg.   Scalia, Thomas and Alito dissented.   Tea leaves suggest a muddled decision on Obamacare at best, if not out-and-out affirming, with Kennedy providing the fifth vote, and Roberts possibly joining in part.   We'll see.

Girl of the Day - Anticipation (Carly Simon)

While waiting for the Obamacare decision (if it comes today), it seemed fitting to throw in a Girl of the Day from the fading heyday of liberalism.   Ladies and Gentlemen, Carly Simon!

Mandate-ageddon!

The Supreme Court may announce its ruling on Obamacare today.   Opinions get announced at 9:00 am.

My bet:  the Court splits the baby, holds the individual mandate unconstitutional, upholds the rest.   Then, chaos ensues, since the scheme only works if the mandate compels healthy people to pay for insurance while simultaneously compelling insurers to accept people with pre-existing conditions.   If you do the latter without the former, insurance companies go out of business, because every rational economic actor will opt to be a "free rider" without insurance (until they need it).

Analogies and Double Standards

A few days ago I noted a good analogy about Obama's immigration decision, noting that if a Republican President had failed to get a capital gains tax elimination bill through Congress and then had simply, via executive order, compelled the IRS to stop collecting capital gains tax, the impeachment talk would have begun immediately.   Here's another good analogy, this time with regard to Fast and Furious:

What if Walmart, the “largest seller of firearms and ammunition in America,” had knowingly sold 2,500 firearms to straw purchasers with the intent of having those purchasers carry those guns across an international border and sell them to drug cartel members in Mexico?

And,what if at least two (but possibly three or more) of the guns were used in the murder of a U.S. Border Patrol agent while an untold number of the weapons were used to kill hundreds—literally hundreds—of Mexican citizens?

Moreover, what if one of the straw purchasers, who bought over 700 guns, was on food stamps and Walmart knew it, yet they sold him guns in exchange for bags of cash anyway?

What if some of the 2,500 hundred guns were recovered, but more than 1,000 were not, and what if an untold number of those unrecovered guns were believed to be in the hands of criminals in American cities on our Southwest border?

And lastly, what if explanations given by Walmart board members regarding the authorization of this straw-purchasing, gun-walking program were in conflict with the testimony given by their executive? And what if both they and their executive snubbed their noses at Congressional requests for documentation that would explain who knew what and when?

What would happen to Walmart if that company did these things?

Ace's Key Insight

Ace makes a key point about how so-called "independents" (read: low information voters) will think about Fast and Furious:

I don't think the swing bloc which will decide the election knows much about Fast & Furious, or would even care much if they bothered to inform themselves.

As I've said, I don't think they do their homework.

But this is a dangerous thing for Obama, even among people who don't do their homework. At some point they take a look at all the questions they would have to resolve in Obama's favor in order to vote for him, and decide: The hell with that. That's too much work. I'd have to do an awful lot of homework just to feel comfortable clearing Obama of all this accumulate crap. It's just easier to assume he's halfway guilty on all of it.

And that's how I think people who don't do their homework tend to think.

The casual observer is just beginning to hear about Obama and "withholding documents" and "executive privilege" and contempt of Congress and gun-running and Mexican drug cartels and a dead border patrol agent.   They don't have to connect all of the dots to think that something in there must stink to high heaven. 

File This Under "If You've Lost Jon Stewart..."

Jon Stewart does a better job laying out the facts behind Fast and Furious and criticizing the Obama Administration's conduct, including Obama's assertion of executive privilege, than anyone else in the MSM by far:

The Daily Show
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Get More: Daily Show Full Episodes,Political Humor & Satire Blog,The Daily Show on Facebook

Olympics Preview - More Lolo Jones

As you can tell, I'm a big fan of hurdler Lolo Jones, and Olympic track generally:

Also watching: Allyson Felix, who is trying to double in the 100 and 200; and Jenny Simpson, the reigning world champion at 1500 meters.

Girl of the Day - Meryl Streep

She's 62 today, and still lovely, but people forget how beautiful she was when she was first coming on the scene in the 1970s.

Uh-Oh, Preference Cascade Update

Rasmussen's tracking poll is now showing Romney up by 5 points, 48-43.

Get ready.

Krauthammer!

Charles Krauthammer, in an important article, offers this terrific analogy regarding the "naked lawlessness" of Obama's executive order on illegal immigration:

Imagine: A Republican president submits to Congress a bill abolishing the capital-gains tax. Congress rejects it. The president then orders the IRS to stop collecting capital-gains taxes, and declares that anyone refusing to pay them will suffer no fine, no penalty, no sanction whatsoever. (Analogy first suggested by law professor John Yoo.)

It would be a scandal, a constitutional crisis, a cause for impeachment. Why? Because unlike, for example, war powers, this is not an area of perpetual executive-legislative territorial contention. Nor is cap-gains, like the judicial status of unlawful enemy combatants, an area where the law is silent or ambiguous. Capital gains is straightforward tax law. Just as Obama’s bombshell amnesty-by-fiat is a subversion of straightforward immigration law.

Job Creation?

I don't know, but this seems a little bit, well... stupid:

The Obama administration spent $10 billion to create 355 renewable energy jobs per year, according to testimony offered Tuesday before Congress by a Congressional Research Services expert.
Asked by Rep. Cory Gardner (R., Colo.) “how many jobs were created” in 2009 and 2010 under the 1603 renewable energy grant program authorized by the Obama administration, a CRS specialist in public finance admitted that $10 billion was spent to create 3,666 construction jobs over a two-year period–and only 355 jobs per year going forward.
Dr. Molly Sherlock, the CRS specialist, first said the jobs total would depend on the type of job–and differentiated between “induced,” “direct,” and  ”indirect” jobs–before Gardner asked for a straight number.
“I just want to know how many jobs were created,” Gardner said during the hearing.
“If you’re looking at the direct jobs, this one estimate has direct jobs created at 3,666 in the construction phase, and direct jobs created at 355,” Sherlock said. “Direct jobs would just be the construction jobs and the ongoing operations and maintenance jobs. But if you wanted to look at the supporting jobs in other industries then you’d want to look at the other figures.”
“So for direct jobs—just if we look at the first year, this is average jobs per year, it’s 355 jobs per year—in two years, 355 jobs created a year, $10 billion?” Gardner asked.
“That would be jobs per year going forward,” Sherlock responded, “so these would be jobs that would be retained, average jobs per year going forward, yes.”
“For $10 billion?” Gardner clarified.
“Yes,” Sherlock said.

OK, now I realize that this may take some arithmetic, which is hard for government workers.   But 355 jobs for $10 billion works out to about a little under $30 million per job!   Even if the 3666 temporary construction jobs were "created" and permanent, you'd still be looking at something just under $3 million per job.

Let's put that in perspective.   A decent middle-class job, nothing fancy, but well-paying for people who would otherwise be out of work, might be something like $40,000 a year.   Add in a decent benefit package and let's put the total cost of labor at $60,000 per year.   Let's call these decent middle-class jobs "new teachers" or "new police officers" or "new firemen," since the Democrats only seem to care about those type of public service jobs.   But so be it.   I could hire 1,000 new teachers, policemen or firemen at that rate for $60 million a year.   I could hire 10,000 for $600 million.   I could hire 100,000 for $6 billion.   So I could hire roughly 166,000 for $10 billion.  

Why aren't the public employee unions and teachers' unions screaming about how Obama's efforts to line the pockets of his wealthy cronies in "green energy" are robbing "the children" and endangering our neighborhoods?

Obama '12 - What's Good for My Donors Is Good For America!

Is Holder's Assertion of Executive Privilege Sanctionable?

When a lawyer does something unethical, we lawyers say that the conduct is "sanctionable," meaning that it warrants discipline by the bars to which the lawyer belongs.   So the question arises, is Eric Holder's assertion of the "deliberative process" version of executive privilege sanctionable, when it utterly fails to acknowledge the relevant precedent, the Espy case, which holds that the privilege "disappears" in cases where Congress is investigating government misconduct?

I think it is.   Holder is a member of the District of Columbia Bar.   Under Rule 3.3(a)(3) of the Rules of Professional Conduct for D.C., entitled "Candor to the Tribunal,"

 A lawyer shall not knowingly:... Fail to disclose to the tribunal legal authority in the controlling jurisdiction not disclosed by opposing counsel and known to the lawyer to be dispositive of a question at issue and directly adverse to the position of the client.  

In my opinion, failing to disclose the importance of the Espy decision to the analysis of executive privilege in this case does, in fact, violate this rule of ethics.   Holder would thus be theoretically sanctionable.

No News on Obamacare Supreme Court Ruling

The Supreme Court did not issue a ruling today on the Obamacare case, so we'll have to wait until next week.   Oddly, this is probably bad for the President... don't you think he would have loved to have a ruling today that would push Fast and Furious off the front pages and out of the Sunday news shows?   Now it will be wall-to-wall executive privilege analysis for the next few days.

Girl of the Day - Jane Russell

It's Jane Russell's birthday.   'Nuff said.

Hinderaker on Executive Privilege

John Hinderaker, an attorney who writes at the Powerline blog, has this trenchant observation about Eric Holder's argument for executive privilege in the Fast and Furious investigation:

Also, it's gratifying to see that Hinderaker, like me a commercial litigation attorney, reaches the same conclusion regarding the claim of "deliberative process" privilege by the administration -- under the relevant precedent, the Espy case from the D.C. Circuit, it's frivolous.

Holder’s letter is a remarkable document. Viewed from a strictly technical standpoint, it is a terrible piece of legal work. Its arguments are weak at best; in some cases, they are so frivolous as to invite the imposition of sanctions if they were asserted in court. I will explain why momentarily, but first this observation: if an opposing party requests documents that plainly are protected by a privilege, a lawyer will routinely assert the privilege, on principle, even though there is nothing hurtful to his case in those documents. On the other hand, a lawyer will not assert a lousy claim of privilege unless he badly wants to keep the documents in question out of the opponent’s hands because of their damaging nature. If I am correct that the administration’s assertion of executive privilege is baseless, it is reasonable to infer that the documents, if made public, would be highly damaging to President Obama, Attorney General Holder, or other senior administration officials.

Drip, Drip, Drip.... Gush!

Unemployment numbers for May.   Gay marriage.   The Wisconsin election.    National security leaks.   Fast and Furious.   Executive privilege.   And tomorrow, maybe, the Obamacare ruling.

Hear that dripping sound?   That's the sound of a preference cascade about to happen.

More on Fast and Furious

Earlier today I noted that the "deliberative process" privilege asserted by Obama/Holder does not apply in cases of governmental misconduct.  Obviously Fast and Furious is such a case, but I had forgotten this nugget, which makes the point even more obvious:

The chief of the Criminal Division of the U.S. Attorney’s Office in Arizona is refusing to testify before Congress regarding Operation Fast and Furious, the federal gun-running scandal that sent U.S. weapons to Mexico.

Patrick J. Cunningham informed the House Oversight Committee late Thursday through his attorney that he will use the Fifth Amendment protection.

That was several months ago.  Interesting how the story seemed to disappear from view until now in the MSM, isn't it?

Brian Terry Family's Statement

Ouch:

The family of slain U.S. Border Patrol agent Brian Terry, who was killed with guns tied to the Fast and Furious program, issued a statement Wednesday afternoon accusing President Obama of compounding their family tragedy by invoking executive privilege....

Terry family attorney Pat McGroder on Wednesday released the following statement from Terry’s parents Josephine Terry and Kent Terry Sr.: “Attorney General Eric Holder’s refusal to fully disclose the documents associated with Operation Fast and Furious and President Obama’s assertion of executive privilege serves to compound this tragedy. It denies the Terry family and the American people the truth.”

The Terrys said that their son “was killed by members of a Mexican drug cartel armed with weapons from this failed Justice Department gun trafficking investigation. For more than 18 months we have been asking our federal government for justice and accountability. The documents sought by the House Oversight Committee and associated with Operation Fast and Furious should be produced and turned over to the committee. Our son lost his life protecting this nation, and it is very disappointing that we are now faced with an administration that seems more concerned with protecting themselves rather than revealing the truth behind Operation Fast and Furious.”

Hard for the MSM to ignore the story now, huh?

This Meme May Have Legs

From Drudge:

Andrew McCarthy on Fast and Furious

Andrew McCarthy hits it on the head here:

The issue in F&F is not the withholding of DOJ documents. The issue is the reckless provision of an arsenal fit for an army to violent cartels, quite predictably resulting in the murders of possibly hundreds of people including at least one United States law enforcement officer. That is the reason Congress did not go away, as it usually does, when the Justice Department ignores or slow-walks demands for information. What happened here is too grave to take “no” for an answer....

Because Issa has been dogged, we have now gotten down to brass tacks. The prospect of the attorney general’s being held in contempt finally prompted the president — the only official in the government empowered to assert executive privilege — to claim that the documents sought are being withheld at his (Obama’s) direction, based on his constitutional authority.

Executive privilege is a vestige of Richard Nixon’s desperate effort to conceal criminality in the Watergate scandal. The last thing Obama wanted to do, with the November election looming, was resort to the Nixon strategy (which, we should recall, failed in the end)....

They really don’t want you to see what is in those documents.

I Agree With Obama on Executive Privilege!

Here is what he said in 2007 regarding the question when it involved an investigation into why President Bush fired nine U.S. attorneys:

Fast and Furious and Executive Privilege Primer - Update

Here is Eric Holder's letter to the President.   Apparently he is claiming the "deliberative process" privilege:

I am very concerned that the compelled production to Congress of internal Executive Branch materials generated in the course of the deliberative process concering its response to congressional oversight and related media inquiries would have significant, damaging consequences.

Astonishingly, however, it nowhere cites or attempts to distinguish the Espy or Judicial Watch cases, the most recent precedents, nor does it note the "governmental misconduct" exception to the privilege that Espy stands for.  

This is pure PR... make the contempt citation Congress is probably issuing as we speak something they can downplay as politics; and otherwise kick the can down the road past the election, because no court could possibly rule on this before then.   They know they don't have a leg to stand on legally.   Shameful.

Fast and Furious and Executive Privilege Primer

The President has invoked executive privilege at the 11th hour to justify withholding reams of documents about the Fast and Furious gunrunning fiasco.   Much will be said about this in the coming days, so here's a primer:

1. The most salient and recent precedents on executive privilege are the D.C. Circuit's rulings in the 1997 Espy case (involving Clinton's Agriculture Secretary) and the 2004 Judicial Watch case (involving Clinton's 2000 pardons).    These decisions are from a Court of Appeals just below the Supreme Court.

2. Under these precedents, there are two possible ways a President can assert executive privilege, either (a) the "deliberative process" privilege; or (b) the "presidential communications" privilege.  

3. The deliberative process privilege applies to executive branch officials generally involved with presidential decisionmaking.    Importantly, however, under Espy, "where there is reason to believe the documents sought may shed light on government misconduct, the deliberative process privilege is routinely denied on the grounds that shielding internal governmental deliberations in this context does not serve the public interest in honest, effective government."   Put differently, again by Espy, the privilege "disappears altogether when there is any reason to believe government misconduct has occurred."   That threshold has clearly been met in Fast and Furious.  

4.  So the only privilege they appear to be able to assert would be the "presidential communications" privilege.   But there's the rub, as they say.

5.  The presidential communications privilege only covers communications made or received by presidential advisers in the course of preparing advice for the President, and is explicitly confined to White House staff and not staff in the agencies.   In other words, it requires "operational proximity" to direct presidential decisionmaking.      As Espy holds, "In particular, the privilege should not extend to staff outside the White House in executive branch agencies." 

Given these precedents, I don't see how the President has non-frivolously invoked the privilege, unless he is admitting that the communications withheld are with close Presidential advisers about advice to be given to him.   But... really?   Is he really admitting that he was that involved in Fast and Furious and its coverup?

A good discussion of the privilege can be found here, in a 2008 publication by the Congressional Research Service, which would appear to be authoritative, at least until the Supreme Court rules otherwise.

LeBron James

The Miami Heat went up 3-1 yesterday in the NBA finals against the Oklahoma Thunder.   Thus, LeBron James is on the brink of winning his first NBA championship.   This is his third finals in his career -- remember, he took a truly bad Cleveland Cavaliers team all the way to the finals a few years ago, before taking the Heat there last year.    Lest you think that he's been a failure in the "clutch" in his career to date, it may interest you to know that, if James wins the title this year, he will have won his first title at a younger age than Michael Jordan won his first of six.   We think Jordan got there quicker only because Jordan played three years of college before coming to the NBA, and thus was only in his seventh year in the league.   James is younger, but already is in his ninth year.

Oh, and the iconic moment of James coming back in with cramps at the end of the game to shoot a clutch three-pointer cements his new reputation as a winner.   He always was one, but now everyone knows.  

Funny how that works.

Girl of the Day - Candy Clark

Candy Clark played Debbie Dunham in the 1973 movie American Graffiti.   In retrospect, the movie captures something essential about the 1960s in the character of "Curt" played by Richard Dreyfuss, the unearned, condescending moral superiority of what would become the liberal-radical anti-war left (recalling that Dreyfuss' character ends up being a "writer living in Canada").  

Anyway, Clark played the blonde who befriends the nerdy secondary character played by Charles Martin Smith (who is great in everything he does).    She also has one of the great voices ever:






Clark turns 65 today. Tempus fugit.

Promises, Promises - Obama's Saturday Morning Talks

Oh, promises, promises
This is where those promises, promises end
I don't pretend that what was wrong can be right...
--Dionne Warwick


It goes without saying that President Obama is a man for whom rhetoric is paramount.   Where would he be without his ability to deliver a speech?   In 2008 his oratory was elevated to almost legendary stature, to the point where it was inevitable that he would deliver a speech standing before Greek columns, as if a latter-day Demosthenes had come back to life.   At the time, many of us called it for what it was... fake romantic liberal B.S.    But many more bought into the mythmaking of Obama as a great speaker (notably without ever analyzing the degree to which lauding Obama's ability to speak was similar to how sportscasters used to describe black athletes as "articulate" when they never described white athletes who spoke with similar fluency in similar terms).  

The problem with relying on speaking in the Internet age is that your speeches tend to live on for eternity and can be exhumed by anyone with a laptop and thrown back in your face.   There is so much Obama out there now, too much, that it is easy for the Romney campaign to just quote Obama making statements that, in the fullness of time, seem ridiculous.  

Toward that end, consider this:  every Saturday morning since his inauguration, the President has given a short "fireside chat"-type talk on video.   All of them are available on the White House's website.  

Here is what he had to say three years ago this week:

As we continue to recover from an historic economic crisis, it is clear to everyone that one of its major causes was a breakdown in oversight that led to widespread abuses in the financial system. An epidemic of irresponsibility took hold from Wall Street to Washington to Main Street.  And the consequences have been disastrous. Millions of Americans have seen their life savings erode; families have been devastated by job losses; businesses large and small have closed their doors. 

In response, this week, my administration proposed a set of major reforms to the rules that govern our financial system; to attack the causes of this crisis and to prevent future crises from taking place; to ensure that our markets can work fairly and freely for businesses and consumers alike. 

So, as of three years ago, in his June 19, 2009 radio address, Obama was already saying that we were "recovering" from the economic crisis, and that his policies would "prevent future crises."  

There is more, much more in these radio addresses -- paeans to clean energy (Solyndra?  hello?), for instance.    Expect the Romney campaign to be mining these past statements by Obama to great effect in commercials, whether on television or simply "broadcast" via new media (Youtube, networks of bloggers, etc.).  

Look, this might be unfair.   No one wants their words quoted back to them.   I would imagine that if you looked at the Regular Guy Believes from two years ago, much of what I've said would look foolish too.   But the difference is this... policy is always a prediction.   If I support a policy to create jobs, I am predicting (read: promising) that the policy will, in fact, create jobs.   If it doesn't, that means that my policy was wrong, just as if an experiment fails in science, it means that the hypothesis was wrong.

Obama was full of predictions and promises in 2009.   Very few of them have been proved in the crucible of experience. 

Obama's Self-Invention, or as We Like to Call it Here in Wisconsin... Lying

Generally, I'm willing to cut Obama (and Clinton before him) some slack on their propensities to reinvent their personal histories to fit a politically-attractive narrative.   But this sort of thing is ridiculous:

1. Hussein Onyango, Barack's grandfather, wasn't really imprisoned and tortured by the British.

2. The father of his Indonesian stepfather, Soewarno Martodihardjo, wasn't killed by Dutch soldiers in the fight for independence.

 

3. Regina, a friend at Occidental who Obama writes about as a symbol of the authentic African-American experience turns out to be based on Carolina Boss, who is white. Regina was the name of her Swiss grandmother.

 

4. Obama projected a racial incident onto his New York girlfriend that he later told Maraniss had happened in Chicago.

 

5. Obama wrote that he broke up with his New York girlfriend in part because she was white. But his next girlfriend, an anthropologist in Chicago, was also white.

 

6. Obama cuts out two white college roommates entirely.

 

7. Obama wrote about his high school friends as an alienated, ne'er-do-well "club of disaffection." In fact, most members of the "Choom Gang" were "decent students and athletes" who went on to successful careers.

 

8. Obama's mother left his father, not the other way around.

 

9. In his memoir, Obama mentions he missed out on playing time in high school basketball because he coach preferred players who "play like white boys do." In fact, Obama had to work hard just to make the team, and race had nothing to do with it.

These are myths exposed as lies in David Maraniss' new biography of Obama, which is detonating shortly.