First there is the record low polls of his popularity. Then there is the growing independent view that there is no chance that the Democrats can retake the House and that the GOP could not only gain seats in the House but retake the Senate. However, nothing likely prepared President Barack Obama for this. His controversial use of unilateral authority has been defended by . . . former Attorney General Alberto Gonzales. You may recall Gonzales who was so vilified for his politicalization of the Justice Department and blind support of executive power that he had a difficult time even landing a job. The Gonzales defense is part of a bizarre new world of Democratic politics. Democratic members of Congress recently lined up to quote Associate Justice Antonin Scalia for his restrictive views on standing — a view that has been used to bar public interest organizations in environmental and civil liberties cases. The Obama Administration now routinely pitches appeals to the four most conservative members of the Supreme Court on presidential powers and the most vocal supporters of the President’s use of virtually unchecked power is coming from former Bush officials. Such is the inversive world in which we live. The Democrats have largely abandoned traditional values tied to civil liberties, war powers, privacy, and other core issues in favor of supporting Obama. The result is that you find yourself left with Alberto Gonzales as your pro bono counsel.
Archive for the ‘Congress’ Category
Hillary Clinton seems to have found a way to get people from moving beyond her disastrous “dead broke” claims, but not in a way that is likely to please those voters tired of wars and military interventions. Clinton used an interview this week to criticize the “failure” of President Obama’s policies in Syria and to insist that she wanted a more interventionist military approach. President Obama was quoted responding to such criticism by calling it “horseshit.” It seemed a return to the 2008 election where Clinton campaigned on her hawk credentials in the Iraq and Afghanistan wars — a mistake for many Democratic and independent voters. Recently, she changed her mind and said that the Iraq War was a mistake despite her refusal to listen to a chorus of critics of the war at the time when it was a popular political move. Despite that change, Clinton is suggesting that she would have armed the Syrian rebels and acted more aggressively to stop the Islamic State.
The Congressional Research Service (CRS) has issued a report that informed Congress that it has created 439 new criminal offenses between 2008 and 2013. This staggering figure gives a glimpse into the rapid criminalization of America where there are, by some estimates, around 4,500 federal offenses alone and tens of thousands of more on the state and federal levels. Politicians continue to add crimes, which tend to be popular with voters and do not require immediate budget demands (though they add huge costs not just in enforcement but the costs of citizens themselves in being pulled into the criminal justice system).
Posted in Congress, Constitutional Law, Courts, Criminal law, Justice, Lawyering, Media, Politics, Society, tagged Bank of America, Bernie Madoff, Brian Moynihan, Citigroup, Judge Jed S. Rakoff, MERS, Rebecca Steele Mairone on 1, August 10, 2014 | 48 Comments »
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor
It seems that a week doesn’t go by without news of the latest Big Bank agreeing to pay billions in a settlement with the government over their past and continuing abuses concerning mortgages. This past week was no exception.
“Preliminary reports say that a $16 to $17 billion settlement will soon be announced between the Justice Department and Bank of America. That would break the record for the largest bank settlement in history, set less than a year ago by a $13 billion agreement between Justice and JPMorgan Chase.” Crooks and Liars
Sixteen billion dollars is not chickenfeed! However, as we have learned in the many past settlements, the dollar amounts can be a little deceiving. (more…)
By Mark Esposito, Weekend Contributor
Disgraced Ex-Congressman Anthony Weiner is giving back in a big way — or so he claims. Fresh off a recent loss in New York City’s municipal elections, Weiner held the lead among Democratic mayoral hopefuls until disturbing texts with a decidedly lewd overtone were released by a 22-year-old woman he met online. Other women came forward to sink the Weiner warship but Weiner vowed to remain in politics and be active in the community despite another public humiliation for him and his wife, Huma Abedin, a former Hillary Clinton aide.
And alas, now he’s got an idea to rehabilitate his reputation and Rockaway, Queens, a neighborhood that was devastated by Hurricane Sandy in 2012. Beset by rebuilding delays and high unemployment, Weiner proposes a new restaurant with a social conscience in the still reeling community. The Rockaway Restoration Kitchen is months away from it’s first fryer drop but Weiner plans to open the business and employ persons with substance abuse and criminal issues. He also wants to help the diet of the neighborhood, he claims. Rockaway, says Weiner, is a “food desert” dominated by fast food chains and pizzerias. “We want to do something sustainable for the community, while also providing healthy, local food options for the Rockaway population.”
By Mark Esposito, Weekend Contributor
One of the ways we decide how sincere a witness is down at the courthouse is seeing what he said about a topic before there was anything really at stake and comparing that to what he’s saying now. Watching the scandalous political corruption trial here in Richmond for the past few days, I’ve seen plenty of “I said one thing then, but I’m saying something else now” from the various witnesses taking the stand. Take Governor Bob McDonnell’s friend and stockbroker, John Piscitelli, who upon being asked about a particular sleazy scheme to avoid the state’s gift disclosure laws –cooked up apparently by Virginia’s First Lady — answered that he was not “uncomfortable” with the deal. When his prior grand jury testimony was pushed in his face, the securities peddler cleared his throat, straightened his tie, looked around, and then remembered that , lo and behold, the aborted deal to dump stock right before the disclosure deadline and then buy it back did indeed make him feel ” uncomfortable.” Wonderful thing, a trial.
Pity we can’t put politicians on trial simply for being politicians — especially those who are simply flitting around the flame of geopolitical power hoping to catch it for themselves. Take House Speaker and Republican Party leader John Boehner, for example. The burgeoning crisis in northern Iraq caused by the jihadist crazed theocrats of ISIS has come front and center to the world stage. Crashing in from Syria, the fundamentalists, dedicated to establishing a new world order based on a universal muslim caliphate governed by sharia law, have rounded up non-muslim Iraqis, forced them to convert to Islam, and then quite ceremoniously beheaded them or when the swords got too dull, simply stolen their possessions and run the “infidels” into to the mountains. A direct by-product of the unnecessary War in Iraq II by Bush II, the teetering country is now firmly ensconced in civil war with some added religious crusaders to spice the mix.
I recently wrote on the issue of impeachment that has been reportedly so widely in the media. As I noted in the column and in prior interviews, there is no serious move toward impeachment by the Republicans and most of the impeachment talk has come from the White House and Democrats, including in fund-raising campaigns. Indeed, I was critical of the Washington Post column after one of the hearings in which I testified on executive over-reach. While the issue of impeachment was mentioned only a handful of times and usually to dismiss it as an option, the column was entitled “Republicans see One Remedy for Obama — Impeachment.” It seems that even denying impeachment as an option still constitutes discussing impeachment. Now The Hill newspaper has looked at the congressional record to see who is raising impeachment more often. The result was that Democrats raised the issue 20 times more often than Republicans, who barely uttered the “I” word.
This month, Washington seems caught in some strange time loop. The President allegedly fighting off an attempt to remove him while Members of Congress are denouncing his “Imperial Presidency” and contempt for constitutional law. It must be enough to give Bob Woodword and Carl Bernstein vertigo.
As one of the legal experts who testified during the Clinton Impeachment and lead defense counsel in the last judicial impeachment trial in the Senate, I have been struck by the replication of a number of misconceptions surrounding impeachment. That led to Sunday’s column on certain myths regarding impeachment. According to a CNN/ORC poll last week, some 33 percent of Americans think the president should be impeached. Over a majority now disapprove of his conduct in office according to other polls. However, that is not enough for impeachment. As many of you know, I am highly troubled about the actions taken by President Obama in violation of the Separation of Powers. I testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. I ran another column recently listing such incidents of executive over-reach. Some like the violations of the power of the purse in the shifting of hundreds of millions of dollars raise extremely serious challenges to our system. However, I do not believe that these violations have yet reached the point of impeachable offenses. Ideally, a federal court will review some of these violations and show that the system can work in the maintenance of the lines of separation though the Administration is clearly going to fight hard to block any review of the merits by any federal court. That is where such matters should, in my view, be heard and resolved. In the meantime, the President’s threat to continue to act unilaterally is playing a dangerous game of chicken in our system and, if he goes too far in an act defying clear congressional or judicial authority, he could cross over from interpretive disagreements into impeachable offenses. Yet, the current array of conflicts have divided lower judges on the merits. Such interpretive disagreements are not the thing that impeachments are made off. Having said that, one should not take the lack of impeachable offenses to take away from what some of us view as very serious violations by this President — a usurpation of authority that all citizens should denounce in the interests of our constitutional system. (more…)
Following the admission that the CIA hacked Senate computers and lied to Congress, President Obama today affirmed that it did indeed torture people. This admission (while belated) is an important recognition by the United States of what is obvious from a legal standpoint. However, that also means that CIA officials violated both federal and international law. The question is why Obama began his first term by promising CIA employees that they would not be tried for what he now describes as “tortur[ing] some folks.”
In the same week as the State Department report endorsing findings that the CIA lied to Congress and brutalized suspects, the CIA is now admitting that its recent denials of hacking Senate computers was also false. Once again, however, there is not even a suggestion of discipline, let alone criminal charges, for CIA officials who lied to Congress (or allowed others to lie) and hacked into congressional computers.
The State Department has issued a document that endorses the findings of the Senate report on the CIA’s interrogation and detention practices after the 9/11 attacks. The document notably avoids references to “torture” but discussed now the CIA brutalized suspects and misled Congress. Putting aside such word substitutions of “brutalizing” for “torture” and “misleading” for “lying,” there remains one glaring omission: not a single CIA official was disciplined, let alone criminally charged. One official even publicly admitted to destroying evidence to avoid its use in court in a torture prosecution. He was allowed to retire with honors and accolades. The Bush and Obama Administration steadfastly refused to prosecute such officials. Indeed, soon after coming to power, Obama went to the CIA to assure officials that they would never face prosecution.
I have often lamented how there does not appear to be any real sense of accountability left in Washington. (For a column, click here). Billions of dollars are wasted or programs are run into the ground, but rarely are people held accountable. Part of the reason is the duopoly of power. Politicians have so convinced voters to adopt this red state/blue state paradigm that Democrats and Republicans will no longer tolerate any criticism of their respective leaders or parties. It is, to put it simply, nothing short of a scam. We have become so programmed by the respective parties that any negative story about our respective party automatically unleashes an attack on how much worse the other party is or would be in a given area. It is the same phenomenon that we saw during the Bush Administration where Republicans remained silent in the face of failed policies and poor administrative decisions. We have become a nation of apologists.
One of the greatest examples that I have previously discussed is the Affordable Care Act (ACA). The Democrats deserve ample criticism first for a law that was poorly drafted and vetted (when I spoke on Capitol Hill before its passage, I said I was in favor of national health care but thought this was one of the worst crafted major pieces of legislation I had seen go to the floor of Congress.). After doing a uniquely bad job in drafting the law, the Obama Administration then did an absolutely appalling job in managing the program in its critical rollout despite years of planning and billions in costs. Now, the independent Government Accountability Office (GAO) has completed its investigation of the disastrous rollout and found gross negligence that drove up costs and crippled the start of the program. The response? Crickets. Nothing.
Below is my column this morning in USA Today on the rivaling health care rulings in Washington, D.C. and Virginia. I have been struck on this and other blogs with how quickly people criticize the opinions by attacking the motives and backgrounds of the respective judges. It is a signature of our times that we no longer debate the issue and try instead to discredit those with whom we disagree. We have learned to hate like the Queen Mother counseled in Shakespeare’s Richard III: to “Think that thy babes were sweeter than they were; And he that slew them fouler than he is.” The fact is that the ACA was a deeply flawed piece of legislation that was passed with insufficient review and editing. It was pushed through on a muscle vote when it was in subpar condition. There have been hundreds of serious drafting errors found in the law. Courts have been struggling with those errors as has the White House. Yet, such good faith questions have no place in today’s politics where every issue must be personified and treated as some low-grade political stunt despite long opinions detailing rationales in the two courts. To dismiss these decisions as the result of judicial hacks ignores those extensive problems in the law. This piece looks at that response and how we have lost the ability to engage in civil or substantive discussion on such issues. From a legisprudence standpoint, the two opinions are classic difference in how courts approach statutory interpretation. I would not call either opinion as strictly “textualist” or “intentionalist” but they certainly reflect these different views of the role of the courts and agencies in the interpretation of legislative text. While I agree with the merits of the change ordered by the Administration, I am highly uncomfortable with treating language in a statute as a “typo” or some oversight. Indeed, as we recently discussed, even key players who are now calling the D.C. Circuit interpretation “nutty” previously appeared to subscribe to that interpretation. For that reason, I favor the D.C. Circuit opinion out of concern over limiting the role of the courts and reinforcing the separation of powers. Here is the column.
I have received a fair number of emails over the debate last week featuring my views on executive power on the Senate floor. The debate concerned the growing fight over immigration and I have been asked by journalists if I believe that the President is also violating the Separation of Powers with the suggestion of unilateral measures in the area. I am indeed troubled by the suggestion of a new round of unilateral actions by the President. However, the details are still unclear.
Posted in Congress, Constitutional Law, Free Speech, International, Justice, Politics, Society, tagged George J. Tenant, J. Cofer Black, Sen. Ron Wyden, Senate Select Intelligence Committe on 1, July 27, 2014 | 30 Comments »
Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor
Since the Senate Select Committee on Intelligence voted in April of this year to declassify its long-awaited Torture Report, the intelligence agencies have been working behind the scenes to convince the Executive Branch to further sanitize it or keep it entirely secret. Needless to say, the declassification process used to prepare the report for public consumption has been dragging on. With the CIA and other defense agencies working overtime to keep a lid on the report, the truth may never reach the public.
What can Congress do to make sure that its report gets declassified and distributed to the public if the President agrees with the intelligence agencies and does not order the release? (more…)