Recently in Politics Category

The WaPo's political blog, The Fix, has this post on the governorships deemed in play this year and next.  Most pertinent for us:

Colorado comes onto the line for the first time this cycle following a Quinnipiac University poll showing former congressman Tom Tancredo (R) running neck-and-neck with the once highly popular governor. Hickenlooper's decision to grant a temporary reprieve to a convicted murderer was received very poorly by Colorado voters in the survey. It's just one poll, and time will tell whether it is an outlier. But for now, this race is worth keeping an eye on.

The poll is here.  Quinnipiac says,

Colorado voters say 69 - 24 percent that the death penalty should stay on the books and not be replaced by life in prison with no chance of parole, according to a Quinnipiac University poll released today. At the same time, Gov. John Hickenlooper finds himself running neck and neck with possible challengers in the 2014 governor's race.

Voters disapprove 67 - 27 percent of Gov. Hickenlooper's decision to grant convicted murderer Nathan Dunlap a reprieve, and 74 percent say the death penalty will be "very important" or "somewhat important" in their vote for governor next year, the independent Quinnipiac (KWIN-uh-pe-ack) University poll finds.

I would dearly love to see Hickenlooper get the boot and for it to be clear that this is the reason.  It would be just deserts for Hickenlooper himself.  It would allow a reboot of justice for Colorado, one of the states stabbed in the back by the Supreme Court's Walton/Ring flip-flop.  It would send a strong signal to governors elsewhere considering similar shenanigans.

The clemency power is a necessary and important safeguard to correct miscarriages of justice in individual cases that have somehow slipped through the cracks, uncorrected by the judicial process.  Using it to block the enforcement of a law altogether is a misuse of authority.

I have taken the position that Eric Holder lied when he insisted under oath that he was not involved in a "potential prosecution" of Fox News reporter James Rosen.  I have also maintained that Prof. Orin Kerr's defense of Holder on the Volokh Conspiracy doesn't hold up.  (Prof. Volokh himself has chimed in to agree with Orin).

It's always a good sign when someone with day-to-day exposure to the realities of the criminal justice system gets a voice in a body as powerful as the US Senate. Today, Gov. Chris Christie, himself a former US Attorney, appointed his one-time chief adviser in the USAO, Jeff Chiesa, to serve as the interim Senator from New Jersey, taking the seat of the late Frank Lautenberg.

In a post here, I directly implied that Eric Holder committed perjury in his May 15 Congressional testimony, and would wind up "in big trouble" because of it.

Politico tells us that a US Attorney in Tennessee is "vowing to use federal civil rights statutes to clamp down on offensive and inflammatory speech about Islam."

"This is an educational effort with civil rights laws as they play into freedom of religion and exercising freedom of religion," [US Attorney Bill] Killian said about the meeting. "This is also to inform the public what federal laws are in effect and what the consequences are."

"If a Muslim had posted 'How to Wink at a Christian [with a target picture],' could you imagine what would have happened?" Killian asked, according to the newspaper.

Gov. Lincoln Chafee of Rhode Island, erstwhile Republican and Independent, has joined the Democratic Party.  I am not a Democrat, but this is sad news.  The Party of FDR and Truman deserves better.

It's reported that the embattled Eric Holder, already under scrutiny for seeking wiretaps on a Fox News reporter, clandestinely pulling Associated Press phone records, and repeatedly dissembling in Congressional testimony, is seeking to smooth things over by inviting major press outlets to come in for a little chat about how there's really nothing to worry about.

Yesterday, I noted that basic questions about the Attorney General's veracity extend beyond his almost certainly false testimony that he knew nothing of a "potential prosecution" of Fox reporter James Rosen  --  even as he was signing a wiretap request that targeted Rosen as an "aider, abettor, and/or co-conspirator" in the very serious federal offense of helping leak classified national security material.  I observed, following Andy McCarthy's lead, that Holder also gave misleading, if not point-blank false, testimony to Congress about his role in securing a pardon for fugitive billionaire Marc Rich.

Yesterday I wrote that, on the current evidence, it appears that Attorney General Eric Holder committed perjury in his Congressional testimony on May 15.  In response to a comment from the ever-perceptive federalist, I said that it seemed to me that Holder was "damaged goods," had shown "problems with truthfulness," and would probably be gone within a matter of weeks.

Two weeks ago, in testifying under oath before the House Judiciary Committee, the Attorney General was asked whether the Justice Department could prosecute reporters under the Espionage Act of 1917.  His response was (emphasis added):

In regard to potential prosecution of the press for the disclosure of material -- this is not something I've ever been involved in, heard of, or would think would be wise policy.

Matthew Huisman has this article in the NLJ (free reg. required):

When Lois Lerner of the Internal Revenue Service invoked her Fifth Amendment right against self-incrimination before a House committee on Wednesday, she did so after making a brief statement.

Those remarks have triggered a debate over whether Lerner waived her Fifth Amendment rights. While case law on the subject is limited and fuzzy, most practitioners agree that Lerner risks being held in contempt.

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George Washington University Law School professor Orin Kerr, in a post on The Volokh Conspiracy blog, pointed to the 1999 Supreme Court ruling in Mitchell v. U.S. that a witness "may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details."

Another Supreme Court precedent on the subject of selective silence is forthcoming.  Salinas v. Texas was argued in April and will probably be decided in June.  CJLF's brief is here.  My podcast for the FedSoc is here.  I don't know if Salinas will shed any additional light on the Lerner situation, but it might.

Off topic but funny.

I have been reluctant up to now to weigh in on the IRS scandal, simply because, in my view, not enough of the facts are known.  What is knows is:  (1) the IRS targeted conservative groups seeking non-profit tax status; (2) this occurred during the election campaign, in which it was advantageous to the President to discourage spending by his opponents while making it relatively easy for his friends; and (3) White House Counsel's Office knew about this before the White House previously claimed.

Mostly off-topic political note.

Gary Fields and Neil King report in the WSJ:

Congress plans this week to create a new, bipartisan task force to pare the federal criminal code, a body of law under attack from both parties recently for its bloat.

The panel, which will be known as the House Committee on the Judiciary Over-Criminalization Task Force of 2013, will comprise five Republicans and five Democrats. It marks the most expansive re-examination of federal law since the early 1980s, when the Justice Department attempted to count the offenses in the criminal code as part of an overhaul effort by Congress.

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Rep. F. James Sensenbrenner (R., Wis.) a longtime champion of overhauling the code, will lead the task force. He is expected to reintroduce a bill he has tried to get through several congresses that would cut the size of the criminal code by a third. "Overcriminalization is a threat to personal liberty and an expensive and inefficient way to deal with a lot of problems," he said.

Efforts at criminal law reform are often covers for people whose real agenda is to repeat the disastrous soft-on-crime mistakes of the 60s and 70s (e.g., California's realignment), so my skeptical antenna goes up immediately.  However, the fact that sensible Sensenbrenner is chairing the committee is reassuring.

Our main concern here at CJLF is with acts that every rational person agrees should be criminal, such as murder, rape, robbery, and burglary.  "Overcriminalization" is the use of criminal law to address issues that should be civil matters, and we are okay with efforts to prune that back.  Indeed, the moral force of the criminal law is enhanced by reserving it for genuinely evil acts with evil intent.  It is diluted by extending it to lesser transgressions and by blurring the distinction between intent and error. 

In addition, most crimes should be matters of state law, and as all-weather federalists we are fine with efforts to trim federal law back to its proper territory.  If the committee comes up with proposals to address these issues without going soft on crimes that genuinely deserve strong punishment and genuinely should be federal, it can make a positive contribution.