The Rule of Law (UK Style)

On NEO there are 228 articles dealing with the ‘Rule of Law‘ or so says the search box. It’s been one of the most common topics here since day one. It continues to be, for cause. Here’s why, from the £ Daily Mail.

An ‘extraordinary’ Oxford University student who stabbed her Tinder lover with a bread-knife could be spared jail after a judge said a custodial sentence would damage her future career as a heart surgeon.

Lavinia Woodward, 24,  swiped at her boyfriend with the blade, before stabbing him in the leg.

She then hurled a laptop, a glass and a jam jar at him, during the drink and drug-fuelled clash at Christ Church college, Oxford.

Woodward, who currently lives in Milan, Italy, previously admitted unlawful wounding at an earlier hearing.

Judge Ian Pringle said the offence would normally mean a prison term, but instead delayed sentencing and slapped her with a restraining order to stay drug-free and not to re-offend.

He told the court: ‘It seems to me that if this was a one-off, a complete one-off, to prevent this extraordinary able young lady from not following her long-held desire to enter the profession she wishes to, would be a sentence which would be too severe.

‘What you did will never, I know, leave you but it was pretty awful, and normally it would attract a custodial sentence, whether it is immediate or suspended.’

Prosecutor Cathy Olliver said Woodward met her ex online and at the time of the attack, September 30, her behaviour ‘deteriorated’.

The student’s boyfriend called Woodward’s mother on Skype, and his then-girlfriend punched him in the face before assaulting him with the knife.

Defending, James Sturman QC said his client’s dreams of becoming a surgeon were ‘almost impossible’ as her conviction would have to be disclosed.

Woodward had a ‘very troubled life’, struggled with drug addiction, and had been abused by another ex, Mr Sturman said.

Lavinia Woodward will be sentenced on September 25.

To American eyes, British sentencing looks pretty mild at any time, but even there one would expect a custodial sentence for a drugged binge, including assault with a deadly weapon on one partner, even if one were attending Oxford hoping to be a doctor. You know, us provincial Americans, “You do the crime, you do the time”. Yeah, we know a woman, especially a fairly cute one, won’t catch as severe a sentence usually, that’s a bit wrong, but it’s a cultural thing with us, and not that big a deal, because women usually aren’t as violent as men anyway.

But this is well beyond that point, It’s a hard thing to ruin someone’s future, even for cause, but it seems hardly a good thing for the average Briton to have unstable, drug abusing, prone to violence, heart surgeons. That’s why we take people off the street, not so much to punish them (in theory, anyway) but to help them get their life straightened out.

But I wonder if the Mail provided us with the answer, after all. Here’s another picture of poor Lavinia.

I may not be the sharpest knife in the drawer, but I’m pretty sure that ain’t cattle class on Ryanair. Yep, it’s a private jet of some kind, and they are not economy class. Mind, one doesn’t have to be close to being Donald Trump to have one, and they often make business sense, but it is not the way we usually go off to Podunk U, to fulfill our dreams.

I won’t say there is bribery involved here, although there certainly could be, in one manner or another. After all, not all bribes are money, many are access, or influence, or other things, and they may actually be more harmful.

But even that is problematic, what I really suspect is that it is simply class solidarity, can’t send our kind to prison, she’d have to deal with all those [insert your own group] here.

And that is why it is pernicious. What has made Great Britain, America, and very few more countries what we are is that the law applies equally to everyone.

And forgetting that will destroy much of the reason they work.

Comey, Enforcing the Law, and Integrity

Director James B. Comey speaks during an F.B.I. press conference at the J. Edgar Hoover Building in Washington, D.C. on Monday, June 23, 2014.

I suppose we should talk a bit about Comey getting his butt fired since it seems everyone else is. The best I’ve read is here.

J Edgar Hoover ran the FBI as if it were his private secret police force. He exceeded his authority, and spied on, blackmailed, harassed, intimidated, and threatened everyone. He became politically unstoppable. He was in power for 48 years. Though hated and feared by several presidents (all of whom had the power to fire him) none dared to oppose him. The only thing that removed Hoover from power was death. The man was a monster.

James Comey was the Director of the FBI. He was fired yesterday. He wasn’t remotely as bad as Hoover.

Yet.


Life is cruel. Sometimes it puts you on the horns of a dilemma. If you do the right thing… you’re fucked. If you do the wrong thing… you’re fucked.

Regardless of his flaws or merits, recent events gave Comey a shit sandwich. There’s no good answer for the role he had to play. What the hell would you do?

Imagine that you’re the head of the FBI. The most powerful nation in the world is trying to democratically elect it’s next leader, who will be your boss. The shit has been hitting the fan all year. Now it’s getting worse.

Your staff shows up with incontrovertible evidence that the leading candidate engaged in serious shitweaseling. This would sink any other person on earth, including you. Normally this would lead to a trial and very possibly time in “Federal pound me in the ass prison“. But this is the favored presidential candidate we’re talking about!

You’re sick with worry. You’re not hungry but you eat a stale donut left from the morning briefing. This information has you trapped.

Do you proceed? Recommend criminal prosecution for a person who’s acted criminally based on the overwhelming evidence of crime? Normally you would, but the other candidate is an orange tinted blowhard who makes everyone in DC break out in hives. The press is screaming that the guy is “literally Hitler”. Whatever you do will influence the election. Who needs this shit? Three hundred million people in the US and they couldn’t come up with two who are squeaky clean?

The donut went down badly. You remind yourself to have a doctor tweak your blood pressure meds. Your secretary is making Vince Foster jokes behind your back. The punchline is “assisted suicide”. You know there’s an office pool; they’re betting on whether you’ll be transferred to Guam or a windowless office in the basement. This job sucks!

The evidence of malfeasance on your desk grows. Objectively, it’s much worse than Watergate. You can say it’s literally bigger than Watergate and be using the word “literally” properly.

Do you wanna’ be Dudley Do Right and send this on for prosecution? Are you sure? The criminal in question is really good at getting away with stuff and she’s probably going to be your boss!

Keep reading the AC, he’s got this one nailed, plumb and square, too. Later on, he says this,

If Comey was like a certain irrelevant and obscure blogger he’d give up and light the fuse. Have an epic ten minute press conference composed of mostly swearing and hand out all (or most) of the relevant evidence. I don’t think like secret squirrel people. I don’t want to be the sole possessor of any potential president’s dirty laundry! The whole thing would end with something like “Fuck it. These people aren’t just criminals, they’re idiots. I don’t care what you do with this information because I quit. I’m going fishing.”

Yep, so would I. Like him, I’m not nuanced enough for this stuff. Probably why I’m not a politician, I can’t lie effectively to myself. And make no mistake, that’s what it is. Like AC, I’m a simple man, who likes it that way.

I feel sorry (kind of) for Comey. He got himself in a very tight spot, no good answers and not much of any way to salvage your career, legacy, whatever you want to call it. But not very. The man took an oath to uphold the Constitution, to enforce the law. There wasn’t a supersecret clause that said except against Clinton, Inc, nor was there one that said unless it hurts Donald Trump.

He’s hardly alone, this sort of moral cowardice is the very substance of the ‘Swamp’, and it is very seductive. We’ve all seen it, although probably not on this level, the little white lie, no one will know, it won’t matter, all that bushwah. Well, that’s exactly how Comey destroyed his life, and maybe his organization. He didn’t intend to get caught in a web of lies and deception, he simply told a little one, one day, to make his life easier. And then every day, he had to tell more to protect the one that went before.

That’s what it means when you hear us say, with Niccolo Machiavelli in his Discourses,

“For the great majority of mankind are satisfied with appearances, as though they were realities, and are often more influenced by the things that seem than by those that are.”

The way my mom taught that lesson, lo these many years ago is this.

If you tell the truth you don’t have to remember what you said.

And it ties back into something else, we prattle on about sometimes, usually because it’s being violated.

“The truth, the whole truth, and nothing but the truth.” Makes life simple, somehow.

Back in the stone age, when I grew up, we had a word for it. That word was integrity. It’s right there on the FBI shield, in English, even. Maybe some people should read a bit better.

A POLITICALLY CORRECT DEATH

A really good one, from Bill Whittle.

Finally, I’m seeing light at the end of the tunnel, of course, it could still be a train.

Unpredictability, and Stability

My friend, Dan Miller over A Sclerotic Goes to War notes that

Kim Jong-un has been deemed “crazy” because he is unpredictable. Trump is far from crazy, but can be unpredictable when he wants to be. China does not know what Trump might do about North Korean nukes and missiles, and that is a good thing.

It is, in fact, a very good thing. The article continues

NBC News is reporting that the possible moves include not only assassinating Kim Jong-un, but moving nukes back into South Korea for the first time since the end of the cold war.

The National Security Council has presented President Trump with options to respond to North Korea’s nuclear program — including putting American nukes in South Korea or killing dictator Kim Jong-un, multiple top-ranking intelligence and military officials told NBC News.

Both scenarios are part of an accelerated review of North Korea policy prepared in advance of President Donald Trump’s meeting with Chinese President Xi Jinping this week.

The White House hopes the Chinese will do more to influence Pyongyang through diplomacy and enhanced sanctions. But if that fails, and North Korea continues its development of nuclear weapons, there are other options on the table that would significantly alter U.S. policy.

Well, that’s a couple of options we wouldn’t have heard in the last eight years, when as that article states Obama’s policy was to, “speak softly and never even pick up the stick”.

According to The Washington Examiner, The Secretary of State, Rex Tillerson said

Chinese President Xi Jinping has agreed to boost cooperation with the U.S. on trying to persuade North Korea to abandon its pursuit of long-range nuclear weapons, Secretary of State Rex Tillerson said Friday.

In an off-camera briefing with reporters on the second and final day of President Trump’s summit with his Chinese counterpart, Tillerson said the two leaders recognized the imminent threat North Korea poses and agreed to respond accordingly.

That’s a good thing, as we talked about a bit last week. But you know, I know, even your crazy Aunt Madge knows, the Chinese don’t give any more of a damn about the crazy little man/boy and his Norks than they did last week. What’s changed? Their perception of what Uncle Sam may do about it. Specifically that we might actually do something.

Putting Nukes back in South Korea has to give them nightmares of the same magnitude that the Sovs putting them in Cuba did us a couple of generations ago. China has always wanted buffer areas. That why they came in against us in the Korean War, and they had telegraphed that they would. That is why we didn’t approach their border in Vietnam. It’s also why the western Europeans were so desirous of expanding NATO eastwards.

Where the rubber meets the road for me is that as the superpower sheriff, America must have guidelines. If you do something, and using chemical weapons is one of those things, America will act. But you will not know what America will do, it might call on the UN to sanction you, it might destroy an airfield or two, then again, it might take your country apart, and arrange a meeting with your god for you. You have no need to know what the sheriff will do. You just need to know that he will do something, and so it is in your best interest to not call attention to yourself by doing things that Sheriff Sam has said are not acceptable behavior. If you don’t, he’ll mostly leave you alone.

I also noticed that almost everybody thought that the Syrian strike was a good idea, except the usual suspects.

via Did the Syria strike push China toward action on North Korea? |

And speaking of the usual suspects, the headlines from Iranian FARS News (more or less official) are interesting.

* ‘Emergency’ Protests across US Demand ‘Hands off Syria’

* Swedish Medical Associations Says White Helmets Murdered Kids for Fake Gas Attack Videos

* Syrian Army Chief Visits Airbase Hit by US Missiles before Resumption of Operation

* Anti-War Group Protests against US Strike in Syria

* Russia: US Fails to Prove Existence of Chemical Weapons at Syrian Airfield

* Top Iranian, Russian Security Officials Discuss US Missile Strike on Syria

* Hezbollah Condemns US Blatant, Foolish Attack on Syria

* Russian Ground Force to Take Part in Anti-Terrorism Operation in Syria’s Hama

* Blustering Toward Armageddon: How Trump Is Upsetting China While Antagonizing Russia

* Top Iranian, Russian Security Officials Discuss US Missile Strike on Syria

* Arab Analyst: US Attack against Syria Not to Topple Assad

* Syrian Fighter Jets Restart Combat Flights over Terrorists’ Centers from Shayrat Airbase in Homs

Sounds a bit hysterical to me, and I suspect if they challenge another US vessel in international waters, it will get worse.

Sometimes we can be like Ransom Stoddard and bring our lawbooks, but sometimes we simply have to be Tom Doniphan, using the old ways to advance civilization. The key is doing the right thing, at the right time, in the right way. It’s also very helpful to keep the cards close to our chest so that only we know what we are going to do.

Rep Nunes, Trump, and Russia

I think that’s the full version of the press conference, which is what I wanted because I don’t really trust anyone’s editing anymore.

This is my comment yesterday on a Brit blog whose author said they are seeing very little on it. I think it’s fairly close.

My best guess, from my reading (which I’m informed I do too much of, since I managed to cross names on Twitter) is that NSA and/or GCHQ slurp up nearly every electronic communication in the US. That was the point of that hugely expensive new installation in the west. What happened here, I think, is that somebody in the former administration ran one (or more) data searches specifically on Trump and/or his close supporters. The next stage was that Obama quietly authorized wide distribution of that information, and some/most/all of it was leaked, by what we’re currently calling the deep state, and the most supposedly damaging (to Trump) published to damage his administration.

Or something like that. Will we ever know? Maybe, maybe not. The Russians? Why would they favor Trump over a proven non-leader when he was fairly obviously going to revive American business, especially oil exploration and export to their detriment as well as reinvigorating the American military. Putin is simply another fall guy, I think. At least, that’s how I see it, after reading some of Nunes testimony. There are some really wild conjectures floating around, and while I don’t give them a lot of credence, in this “Alice in Wonderland” world, I won’t say they’re impossible either.

I have found Mollie Hemingway to be a pretty reliable source, here’s her take from The Federalist yesterday.

In the last three months of the Obama presidency, significant personal information from and about the Trump transition was collected and widely disseminated at intelligence agencies, according to House Intelligence Committee Chairman Devin Nunes.

Dozens of intelligence reports provided to Nunes by an unnamed whistleblower were floating around during the sensitive transition period following the election, he said. The information collection itself may have technically been legal, but the failure to properly mask the information “alarmed” the California congressman, who notified the White House of the surveillance and dissemination of information on Wednesday afternoon.

Many of the reporters present didn’t seem to grasp the significance of what Nunes revealed. You can — and should — watch that press conference here.

Nunes began his remarks by reiterating his Monday request that anyone with information on surveillance of Trump or his team come forward. “I also said while there was not a physical wiretap of Trump Tower, I was concerned that other surveillance activities were used against President Trump and his associates.” While Nunes’ earlier refutation of Trump’s wiretap claim received outsize attention by the media, his concern about other surveillance did not.

He then dropped the bombshell: “First, I recently confirmed that on numerous occasions, the intelligence community incidentally collected information about U.S. citizens involved in the Trump transition. Second, details about U.S. persons associated with the incoming administration, details with little or no apparent foreign intelligence value, were widely disseminated in intelligence community reporting. Third, I have confirmed that additional names of Trump transition team members were unmasked. Fourth and finally, I want to be clear, none of this surveillance was related to Russia or the investigation of Russian activities or of the Trump team.” Again:

Ace did the bullet points for us.

1. “I briefed the president on the concerns I had concerning the incidental collection of data.”

2. The reports I was able to see did not have anything to do with the Russian ties investigation.

3. Reporter gets huffy and demands to know why he is briefing the president about this matter, as the reporter thinks Trump is a criminal and should not be told about the Legal Noose tightening around his gangster neck.

4. He answers that the reason is that from what he saw, the surveillance had nothing to do with the Russian investigation.

5. “Brings up a lot of concerns about whether things were properly minimized or not” (minimized = masking/redacting names of US citizens before disseminating)

6. “What I’ve read bothers me, and it should bother the President himself and his team, because some of it seems inappropiate.”

7. “It definitely goes beyond General Flynn.” “We don’t know how [that name] was picked up [collected, intercepted].”…

More at both links. Well, that what I think, and why I think it. I could easily be wrong, of course. We’ll just have to see. But if I am anywhere right, we have a major problem in the government, and we’d best start thinking how to fix it.

Judicial Tyranny

This terrific overreach by the federal judiciary is becoming most concerning. Donald Trump, like the first 44 incumbents, is President of the United States, whether you (or the federal judges) like it or not. He has all the rights, obligations, and duties of his predecessors. Like most of us, I worried about Obama’s overreach into prerogative rule with his pen and his phone. But we’ve seen none of that with Trump, his every action has been well within the Constitution. Mark Pulliam has some thoughts.

Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.

Horowitz is a columnist for Mark Levin’s Conservative Review who writes frequently about constitutional issues. In Stolen Sovereignty he decries “a runaway judicial oligarchy and an unaccountable bureaucratic state.” He is concerned that the Left “has irrevocably co-opted [the courts and bureaucracy] into serving as conduits for their radical and revolutionary ideas—to the point that even if we win back the presidency and elect only constitutional conservatives to Congress, . . . it won’t matter.”

These words may have seemed like hyperbole at the time, but the federal courts’ implacable opposition to President Trump’s executive orders on immigration suggest that they were on the mark. In a recent post, I expressed dismay at the judicial resistance to the President’s first executive order on immigration (E.O. 13769). Unelected federal judges blocked the President from fulfilling a campaign promise to the American electorate—without even citing the federal statute that expressly authorizes his action.[1]

Some commentators saw the Ninth Circuit’s ludicrous decision as nothing short of a judicial coup d’état. Rather than challenge it in the deadlocked U.S. Supreme Court, on March 6 President Trump issued a revised executive order (E.O. 13780), attempting to correct the alleged defects. Incredibly, the revised order has met with even stronger judicial resistance, spurring  multiple lawsuits and injunctions: a limited temporary restraining order issued by Judge William Conley of the Western District of Wisconsin, a partial injunction issued by Judge Theodore Chuang in Maryland, and a nationwide injunction issued by Judge Derrick Watson in Hawaii. (All three were appointed by President Obama.)

This judicial obstruction of the executive branch on matters expressly entrusted to the President by Congress grossly violates the separation of powers and constitutes a grave threat to our republican form of government. The courts’ usurpation of presidential authority should be deeply troubling regardless of one’s political affiliation. Indeed one libertarian legal scholar, Josh Blackman, who is no fan of the President (he signed the Originalists Against Trump statement prior to the election), has harshly criticized the judges’ interference with these immigration orders, calling the Ninth Circuit’s ruling a “contrived comedy of errors.”

In a three-part blog post for Lawfare on the revised executive order, Professor Blackman concludes that the President’s authority to act unilaterally pursuant to Section 1182(f) is well-established:

Presidents Reagan, Bush, Clinton, Bush, and Obama all issued proclamations under § 1182(f), and there was never even the hint that the notice-and-comment process was required.

No court has ever held that aliens that are seeking entry, who have zero connection to the United States, or its residents, have due process rights. . . . . In short, the small subset of aliens who would in fact be denied entry under this policy have no cognizable due process rights, and to the extent that courts find some interest exist, the review and denial by a consular officer provides all the process that is due.

(…) In Horowitz’s view, the modest concept of judicial review expressed in Marbury v. Madison (1803) “has been transmogrified into complete authority over the future of sovereignty, marriage, culture, and the power to regulate every industry in our economy.” Simultaneously, the federal courts have become a bastion of liberal politics; unelected judges now wield more power than legislators; and judicial activism has become the favored means of Progressive policymaking.

via Judicial Tyranny’s Final Frontier – Online Library of Law & Liberty

That’s all true and very troubling, but what can we do about it? These are all Article III judges appointed during good behavior (which is not defined)m in other words, essentially for life, although they can be impeached, it is a very rare occurrence. It is also just possible that they could be removed by a writ of scire facias, a form of Chancery order which dates back to Edward I. The actual writ of scire facias has been suspended in the Federal district courts by Rule 81(b) of the Federal Rules of Civil Procedure, but the rule still allows for granting relief formerly available through scire facias by prosecuting a civil action.

Other than that, there is little legally to be done. I seem to remember that while the Supreme Court is constitutionally mandated, all the rest are the creation of the Congress, and could simply be disestablished, and new ones established, although at best, that would have the effect of retiring the judges, not firing them, and would certainly be messy for all concerned.

But perhaps there is a less, shall we say, formal method. Paul Mirengoff at Powerline writes this:

President Trump admires Andrew Jackson. He sees himself as Jacksonian.

Accordingly, it might instructive to recall how President Jackson is said to have responded when the Supreme Court ruled, in Worcester v. Georgia, that Georgia laws calling for the seizure of Cherokee lands violated federal treaties. Here is the statement Jackson may have made:

John Marshall has made his decision, now let him enforce it.

Jackson may never have uttered these words. However, both Georgia and Jackson ignored the Supreme Court’s decision. Chief Justice Marshall’s decision was never enforced.

At the rate liberal judges are going, we might see similar defiance of the judiciary by President Trump. I don’t expect Trump to respond that way if the ruling that he cannot temporarily ban immigration from six countries fails to survive judicial review. That ruling doesn’t seem important enough to defy the judiciary over.

I don’t either, but I can foresee occasions where it might be necessary. The founders considered the judiciary the weakest branch, and so there are fewer safeguards here, than anywhere else. That started changing with John Marshall and Marbury v. Madison, and that unchecked power has metatized rather badly in the last fifty years. I don’t know what the answer is, but a solution is needed.

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