Tag: law

Instapundit goes after the IRS

It is remarkable how quickly the feared agency began acting like frightened gangsters once they found themselves in the investigative crosshairs:

When charges came out that the IRS targeted Tea Party groups for harassment, the Wall Street Journal’s James Taranto started calling Obama “President Asterisk.” His point was that this illicit assistance tainted the election, the way an athlete’s use of illegal performance-enhancers results in an asterisk on any records he sets.

Now it may be time for another asterisk. As Congress investigates the IRS chicanery, the IRS has responded to a request for emails to and from Lois Lerner, who spearheaded the Tea Party harassment, by saying, basically, that the dog ate its homework. Or, rather, the IRS claims, somewhat dubiously, that “a hard drive crash” on Lerner’s computer led to the loss of emails to outside entities “such as the White House, Treasury, Department of Justice, FEC, or Democrat offices.” You know, the very people she’s accused of coordinating her harassment with….

Targeting Americans is unforgivable; covering it up is worse, and if the
IRS has made it impossible to target the individuals responsible, then
the IRS as a whole should pay the price.

I find it very, very difficult to believe that the “missing emails” defense is going to hold up. Too many people have suffered at the IRS hands for too long for Congress to give Lerner and company a pass.

Legalized fraud

Overturning centuries of English Common Law, false representation is now legal in the United States.

Goldman Sachs Group Inc. (GS) won dismissal of a suit over $450 million in residential mortgage-backed securities, with a New York judge saying that the firms that bought the bonds should have done more research beforehand.

State Supreme Court Justice Charles Ramos dismissed the claims against Goldman Sachs today, saying the investors only reviewed data presented in offering documents for the securities and never asked to review files for the underlying loans.

“The true nature of the risk being assumed could, admittedly, have been ascertained from reviewing these loan files and plaintiffs never asked for them,” Ramos wrote.

In other words, it’s perfectly legal to present someone with a fraudulent document claiming to be selling them a pig in the poke, because if they don’t actually look in the sack to see that there is a dead rat, and not a live pig in there, it’s their own fault. This is another sign of the continued collapse of the rule of law in the USA.

Congratulations, Justice Ramos. You may have just destroyed the securitization market. Who in their right minds will ever purchase a loan security again? If you were going to review each and every loan and ascertain the risks involved, you would already be a mortgage bank.

Fortunately for Goldman Sachs, there should be enough con artists out there for the apex con artist to continue preying upon. But what sane and honest individual would ever choose to do business with them in light of their behavior here? And can you imagine if this standard were applied across the board? No one would ever dare to buy something in a box or order anything off the Internet ever again.

Now the fun begins

The Tokowitz releases the hounds:

Los Angeles Clippers owner Donald Sterling’s team of lawyers has hired four private investigation firms to dig up dirt on the NBA’s former and current commissioners and its 29 other owners, said a person familiar with Sterling’s legal strategy.

Investigators were given a six-figure budget over the next 30 days to examine the league’s finances, allegations of previous discriminatory conduct and compensation to past Commissioner David Stern and current Commissioner Adam Silver, said the person who spoke to The Associated Press on Thursday night on condition of anonymity. The person wasn’t authorized to talk publicly.

The person said the investigators also are looking into whether other owners made any off-color jokes, or racist or sexist remarks.

“The gloves are off, as they say,” the person said. “Have them dig up all the dirt they can find.”

Here is the interesting thing. If the NBA’s legal position is so strong, why was Adam Silver not only insistent upon Mrs. Sterling indemnifying it, but so quick to make a point about Sterling effectively suing himself? Sterling obviously decided to call Slender Man’s bluff.

It should be entertaining to see what happens if the dirt-digging team comes up with dozens of comments worse than anything Sterling was recorded saying.

“Retire, you selfish old bitch!”

The New York Times leads the campaign for Justice Ginsberg to step down while Obama is still president:

The “best way for her to advance all the things she has spent her life working for is to ensure that a Democratic president picks her successor,” wrote Erwin Chemerinsky, dean of the law school at the University of California, Irvine. Randall Kennedy, a Harvard law professor and a former clerk to Justice Marshall, has argued that both she and Justice Breyer should retire. Former Justice Stevens, for his part, has said, “It’s an appropriate thing to think about your successor.” (Indeed, Chief Justice Warren deliberately resigned before the 1968 election, in an effort to prevent Nixon from naming his successor.)

On the other side of the issue, Dahlia Lithwick of Slate has written, “I have seen not a lick of evidence that Ginsburg is failing,” adding that the justice’s successor is not likely to be as liberal as she is, given today’s political climate.

This much seems clear: The decision is Justice Ginsburg’s, and people close to the court do not expect her to retire this year. No doubt, being a Supreme Court justice is more enjoyable and consequential than being a retired justice. Sandra Day O’Connor, who retired in 2006, has since regretted stepping down as early as she did.

At the same time, there is no denying that any justice who stays on the court into old age is taking a chance. Justice Ginsburg will do damage to the causes about which she cares most if she follows the path of previous liberal justices who allowed a Republican to replace them. Similarly, Justice Scalia or Justice Kennedy will hurt conservatism if either passes up a chance to resign under a Republican president in coming years — and doesn’t get another such chance.

Just think about what liberals would give to have had a Democratic president replace Justice Marshall. And think about how many major cases — on voting rights, campaign donations, the death penalty and other issues — might have turned out differently.

The most interesting aspect of this editorial is that it tends to indicate the NYT’s belief that the next president will not be Hillary Clinton or any other Democrat. Personally, I’d love to see Obama appoint one more Supreme Court justice just to see how badly he’d screw it up. He’d likely appoint a corrupt black lawyer from Chicago, or, more likely, one of Goldman Sachs’s corporate attorneys, because Valerie Jarret wouldn’t accept the pay cut.

Reproductive equality

An Ohio bill addresses one long-ignored injustice intrinsic to current abortion law, reproductive inequality.

Legislation in the Ohio House of Representatives (House Bill 252)
requires written consent from the father of an unborn child in order to
perform an abortion.  The bill will put to test the “it’s my body, it’s
my right” notion of pro-choice activists by adding the rights of the
father of the unborn child into the equation.  Ideally, the decision of
abortion should be a consensus between both parents, with both parties
being involved in any decisions regarding the child.

This is a significant legal and social issue where parental rights
are heavily unbalanced due to the fact that a father plays no role in a
matter as critical as his unborn child’s life.  If a woman decides to
keep her child, the father is required to pay child support regardless
of whether he wanted to keep the child or not, or face future jail time.
 A father currently has no say.  Alternatively he cannot opt-out of
parenthood, but a woman can: She can do so by abortion.

Under the Ohio Bill, a woman must have written consent from the
father; if a woman is claiming rape, she must file a police report,
provide other court documents or an official complaint of the incident.
 If the woman chooses to undergo an abortion in this case, the physician
must have “reasonable cause” to believe the woman’s claim of rape and
thus, perform an abortion.  In cases where the father may be unknown, a
list of all potential fathers must be submitted to a physician.  They
will all be contacted and summoned to a paternity test.  If the father
is not found, no abortion can be performed.  The bill would turn
abortion without a father’s permission or naming a “false biological
father” into a first-degree misdemeanor with a maximum $1,000 fine.  A
second occasion of providing false information would be considered a
fifth degree felony.

I’d vastly prefer to see abortion banned and prosecuted as manslaughter, but this is a realistic and not-unreasonable step in the right direction. After all, his DNA, his choice. A woman should no more be permitted to unilaterally choose abortion than a man should be permitted to force a woman to get one.

The ever-moving goalposts

The US Supreme Court has long made a habit of post-opinion editing:

The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.

The court can act quickly, as when Justice Antonin Scalia last month corrected an embarrassing error in a dissent in a case involving the Environmental Protection Agency.

But most changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.

Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law. They have also retreated from descriptions of common ground with other justices, as Justice Sandra Day O’Connor did in a major gay rights case….

After-the-fact editing is not a new phenomenon. “The current court did not begin this practice, which finds its origins in the court’s earliest days and has extended to all justices over the years, liberal and conservative, but the court today can take the steps to correct it,” Professor Lazarus said. “Easy to do, and long overdue.”

The court seems to have been even more freewheeling in the past. Chief Justice Roger B. Taney added approximately 18 pages to his 1857 majority opinion in the Dred Scott decision after it was announced.

My police friends told me long ago that there is no such thing as a “law-abiding citizen”, that the traffic laws were explicitly written to permit them to exercise their judgment and pull over anyone, at any time. But it’s interesting to see that virtually no one has even a theoretical chance of knowing what the law is, given the way that interpretive case law not only trumps black-letter written law, but is susceptible to behind-the-scenes editing at any time.

Intra-Democrat war

This promises to be an interesting political battle, featuring Vibrant Americans vs Jewish women.

“If it’s not handled by… the start of next season, I don’t see how we’re playing basketball,” NBPA vice president Roger Mason Jr. said in an interview with Showtime’s Jim Rome. “We have player reps, we’ve got executive committee members…  Leaders of the teams, they’re all saying the same thing, ‘If [Sterling] is still in place, we ain’t playing’. … I was just in the locker room three or four days ago. LeBron and I talked about it. He ain’t playing if Sterling is still an owner.”

Mason clarified that the ultimatum applies equally to Shelly Sterling, too. “No Sterling deserves to be an owner of that franchise any longer,” Mason continued. “And I’ve gone down the line from LeBron to the other guys in the league that I’ve talked to and they all feel the same way. There’s no place for that family in the NBA.”

James, who scored 49 points in a Game 4 victory over the Nets in the Eastern conference semifinals on Monday, took a public stand against both Sterlings earlier this week.

“As players, we want what’s right and we don’t feel like no one in his family should be able to own the team,” he said, according to the Associated Press.

It’s bad enough to argue that a man should be deprived of his property due to his private speech, but on the other hand, there are details related to Mr. Tokowitz’s signature on various NBA documents that appear to considerably complicate the matter. But the former Miss Stein didn’t do or say anything objectionable, so one wonders on what ground Mr. Mason and Mr. James could possibly argue that she should be deprived of her property.

I could not care less about the NBA, but this could provide some amusement. It should be interesting to see how fast the NBA reverses direction once Mrs. Tokowitz starts playing the sexist card and the media takes note of the fact that the league has no female owners.

Marital sex is never rape

Some of my dimmer critics have attempted to make a meal out of my factual statement: a man cannot rape his wife. But that is not only a fact, it is the explicit law in the greater part of the world, just as it is part of the English Common Law.

A Delhi court has ruled that sex between a husband and wife, “even if forcible, is not rape.” The judge’s decision, which was made public Saturday, upheld section 375 of the Indian Penal Code, which does not recognize “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age,” as rape.

The fact that some of the lawless governments in the decadent, demographically dying West presently call some forms of sex between a husband and wife “rape” does not transform marital sex into rape any more than a law that declared all vaginal intercourse to be rape would make it so. Reality is not defined by politics; we cannot settle the question of evolution by natural selection by simply passing a law that declares God created the world and everything in it last Tuesday.

Anyone with a basic grasp of logic who thinks about the subject of “marital rape” for more than ten seconds will quickly realize that marriage grants consent on an ongoing basis. This has to be the case, otherwise every time one partner wakes the other up in an intimate manner or has sex with an inebriated spouse, rape has been committed. And for those who wish to argue that consent can be withdrawn, there is a word for withdrawing consent in a marriage. That word is “divorce”.

The concept of marital rape is not merely an oxymoron, it is an attack on the institution of marriage, on the concept of objective law, and indeed, on the core foundation of human civilization itself.

Assassinating the citizenry

Rand Paul opposes the appointment of a known defender of citizen assassinations to the federal judgeship, particularly since the Obama administration is hiding the man’s defenses of those assassinations from the Senate:

The Bill of Rights is clear. The Fifth Amendment provides that no one can be “deprived of life, liberty, or property, without due process of law.” The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” as well as the right to be informed of all charges and have access to legal counsel. These are fundamental rights that cannot be waived with a presidential pen.

In battle, combatants engaged in war against America get no due process and may lawfully be killed. But citizens not in a battlefield, however despicable, are guaranteed a trial by our Constitution. No one argues that Americans who commit treason shouldn’t be punished. The maximum penalty for treason is death. But the Constitution specifies the process necessary to convict.

Anwar al-Awlaki was an American citizen who was subject to a kill order from Mr. Obama, and was killed in 2011 in Yemen by a missile fired from a drone. I don’t doubt that Mr. Awlaki committed treason and deserved the most severe punishment. Under our Constitution, he should have been tried — in absentia, if necessary — and allowed a legal defense. If he had been convicted and sentenced to death, then the execution of that sentence, whether by drone or by injection, would not have been an issue.

But this new legal standard does not apply merely to a despicable human being who wanted to harm the United States. The Obama administration has established a legal justification that applies to every American citizen, whether in Yemen, Germany or Canada.

Defending the rights of all American citizens to a trial by jury is a core value of our Constitution. Those who would make exceptions for killing accused American citizens without trial should give thought to the times in our history when either prejudice or fear allowed us to forget due process.

One would think that Jews in America, more than anyone, would understand the intrinsic danger of permitting a government to legally kill its own citizens at will. I find it astonishing that most of them in the media appear to be more interested in defending the Obama administration than ensuring that the U.S. government is prevented from hunting down and killing Americans without trial.

Post-constitutional America

So much for the theory that transforming the racial and cultural demographics of America was not tantamount to turning America into not-America:

Pulitzer prize winning reporter Chris Hedges – along with journalist Naomi Wolf, Pentagon Papers whistleblower Daniel Ellsberg, activist Tangerine Bolen and others – sued the government to join the NDAA’s allowance of the indefinite detention of Americans.

The trial judge in the case asked the government attorneys 5 times whether journalists like Hedges could be indefinitely detained simply for interviewing and then writing about bad guys. The government refused to promise that journalists like Hedges won’t be thrown in a dungeon for the rest of their lives without any right to talk to a judge.

The trial judge ruled that the indefinite detention bill was unconstitutional, holding:

    This Court rejects the government’s suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention.

But the court of appeal overturned that decision, based upon the assumption that limited the NDAA to non-U.S. citizens:

    We thus conclude, consistent with the text and buttressed in part by the legislative history, that Section 1021 [of the 2012 NDAA] means this: With respect to individuals who are not citizens, are not lawful resident aliens, and are not captured or arrested within the United States, the President’s [Authorization for Use of Military Force] authority includes the authority to detain those responsible for 9/11 as well as those who were a part of, or substantially supported, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners—a detention authority that Section 1021 concludes was granted by the original AUMF. But with respect to citizens, lawful resident aliens, or individuals captured or arrested in the United States, Section 1021 simply says nothing at all.

The court of appeal ignored the fact that the co-sponsors of the indefinite detention law said it does apply to American citizens, and that top legal scholars agree. Last week, the U.S. Supreme Court declined to hear an appeal of the case, thus blessing and letting stand the indefinite detention law stand unchanged.

 Now, do you really think it is an accident that a post-Christian and multiracial America just happens to also be post-constitutional? Do you really think it is nothing more than pure coincidence that those who reject the strictures of the Natural Law also reject the limits imposed by Constitutional Law?

The men who wrote and signed the Constitution were, for the most part, straight white male Protestants of English descent. There is not a single straight, white, male Protestant of English descent on the U.S. Supreme Court that just granted the military and the executive branch agencies extra-judicial powers over the American citizenry. If you do not believe that the differing population demographics that distinguish European culture from aboriginal culture are irrelevant, why do you assume that the different population demographics between the authors of the Constitution and the current Supreme Court must be irrelevant?