Archive for the ‘Democrats’ category

After Last Night

June 21, 2017

After Last Night, Power LineScott Johnson, June 21, 2017

Republican Karen Handel handily handled Democratic manchild Jon Ossoff in the special election to fill Georgia’s Sixth District congressional seat last night. The race was expected to be a cliffhanger. We were told that we wouldn’t know the outcome until the early morning hours today. By 10:00 p.m., however, it was clear that Handel would prevail. With 100 percent of the votes tabulated, Handel won by about four points or 10,000 votes (out of a total of about 260,000).

The Hollywood/San Francisco crowd invested big time in Ossoff. For the California left, it was the night that the lights went out in Georgia. Roger Simon rightly declares Hollywood a YUUUGE loser last night.

The lynch mob media (as Senator Cotton calls it) also heavily invested in the race — as one could see from the looks of the crew commenting last night on CNN. You didn’t even have to turn up the volume to figure out what was happening. How great is this?

Election Night Anchor Face™ is fast becoming one of my favorite things.

Until Ossoff lost, of course, this may have been the most important congressional race ever. It was to be an omen. It would be a portent. Now we’re back in the USSR. Mary Katharine Ham put it this way on Twitter last night:

Update: Formerly vitally important election with national implications that can’t be overstated now scheduled to be irrelevant by 10 am.

Washington Examiner politics editor Jim Antle let loose with a steady stream of punning tweets with musical themes last night. When Handel was declared the winner he observed that it would take a while before we knew which factor was Handel’s messiah.

Ossoff raised $23.5 million to Handel’s $4.5 million. Outside Republican campaign funds partially redressed the balance. The New York Times breaks down the numbers here.

PJ Media’s Tyler O’Neil considers the cash in an excellent post here. “Ossoff’s huge war chest might have hurt him. In the last two months, the Democrat reported receiving nine times more donations from California than from Georgia. In the nine counties of the San Francisco Bay Area alone, Ossoff reported receiving 3,063 donations, nearly four times the Georgia total of 808 gifts.”

From a distance, it seemed to me that Handel probably fit the district a bit better than Ossoff. For one thing, she actually lived there. Ossoff lived outside the district with his girlfriend. At one time he lived in the district. He could remember his old address there.

The Washington Free Beacon’s Brent Scher covered the race in the spirit of Andrew Breitbart. He documented his two-hour trek from Ossoff’s house to the Sixth District. He was rewarded for his efforts with his exclusion from an Ossoff campaign event on the night before the election.

In the end the California contributions may have boomeranged. Handel pounded on the Pelosi factor that an Ossoff victory would enhance. O’Neil notes: “Most of the Handel ads attacking Ossoff tied the Democrat to House Minority Leader Nancy Pelosi. It appears that that message worked.”

Washington Post telegraphs the coming targets of the Left

June 4, 2017

Washington Post telegraphs the coming targets of the Left, American ThinkerThomas Lifson, June 4, 2017

It is clear that the WaPo hopes to put the David Horowitz Center’s tax exemption up for dispute. But that would require a double standard, since there are far more tax exempt non-profits on the left, that avoid explicit partisan activity, while engaging in political activity.  Which means that the IRS will feel plenty of heat and may put Horowitz’s charity through hell.

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Jared Kushner is the latest member of the Trump team to experience a full-blown demonization campaign, but there are already signs that others are in line for the same sort of treatment.  Part of the strategy in destroying the Trump insurgency is to let his allies know that they are in for trouble if they persist.  The left wants to impugn and, if possible, destroy anyone seen as an enabler of the Trump insurgency.

The Washington Post invested a lot of resources in publishing a nearly 4000 word-long “investigation,” that generates a conspiracy theory around one of my heroes, David Horowitz, like me, a former leftist who saw and grasped the underlying corruption inherent in leftist ideologies that deny human nature and promise utopia. It thus serves two purposes: adding a new target for other leftists to investigate and attack – putting him on the agenda, as it were – and offering up a fresh conspiracy theory – necessary in the continuing absence of any evidence at all of Russian “collaboration” with the Trump campaign, a non-crime in itself.

The title of the piece contains a tell on its bias: “How a ‘shadow’ universe of charities joined with political warriors to fuel Trump’s rise”

There is nothing “shadowy” about David Horowitz. In fact, in the course of the article he is “ dismissed…as a bombastic self-promoter” by Bill Kristol.

The lengthy piece begins with a breathless account of an event that it portrays as momentous.

The crowd rose to its feet and roared its approval as Sen. Jeff Sessions bounded onto the stage at the Breakers, an exclusive resort in Palm Beach, Fla. Stephen Miller, an aide to the Alabama Republican, handed him a glass trophy honoring his bravery as a lawmaker.

“Heyyyy!” Sessions yelled out to the crowd.

The ceremony that day, in November 2014, turned out to be a harbinger: It brought together an array of hard-right activists and a little-known charity whose ideas would soon move from the fringes of the conservative movement into the heart of the nation’s government.

The man behind the event was David Horowitz, a former ’60s radical who became an intellectual godfather to the far right through his writings and his work at a charity, the David Horowitz Freedom Center. Since its formation in 1988, the Freedom Center has helped cultivate a generation of political warriors seeking to upend the Washington establishment. These warriors include some of the most powerful and influential figures in the Trump administration: Attorney General Sessions, senior policy adviser Miller and White House chief strategist Stephen K. Bannon.

In the tale that unfolds, David Horowitz is portrayed as the man who brought together Bannon, Sessions, and — hold your breath – the Mercers, the hedge fund billionaires that Hillary spun a vague, semi-incoherent conspiracy allegation around in her infamous blame-everyone-else speech at Recode:

 And I think again, we better understand that the Mercers did not invest all that money just for their own amusement. We know they played in Brexit, and we know that they came to Jared Kushner and basically said, “We will marry our operation,” which was more as it’s been described, psychographic, sentiment, a lot of harvesting of Facebook information, “We will marry that with the RNC on two conditions: You pick Steve Bannon, and you pick Kellyanne Conway. And then we’re in.” Trump says, “Fine, who cares,” right? So Bannon, who’d been running the Breitbart operation, supplying a lot of the … untrue, false stories …

The Wapo conspiracy features the Mercers and provides a little more information on who they are. (I suspect most readers already know.) The specific key incident concerns Pat Caddell, the Democrat pollster, who is credited with the blinding insight that inspired the members of the conspiracy to get together and get Donald Trump elected. See, in case it wasn’t the Russians, it had to be somebody else:

[Bannon] received an unexpected gift.

It came from Patrick Caddell, a veteran Democratic pollster who had once worked for President Jimmy Carter. He was speaking about his recent study of Americans’ sentiments toward Washington, the economy and the nation’s future. He said Americans were feeling glum: Two-thirds blamed self-serving elites in both parties for their troubles. They craved an outsider to shake things up.

His findings thrilled the crowd, Caddell told The Post in a lengthy interview. He earlier gave a similar account to the New Yorker.

Caddell said Bannon arranged for a private briefing the next day, to include Robert and Rebekah Mercer, a hedge fund billionaire and his daughter.

For two years, Bannon had worked with the Mercers, who invested millions in Breitbart News. The family also helped Bannon launch a Florida-based charity called the Government Accountability Institute, which describes itself as a nonpartisan investigative organization.

Bannon and the Mercers huddled with Caddell in a second-floor lounge at the Breakers. The Mercers were entranced by what they were hearing, Caddell told The Post, and Bannon “was ecstatic.”

“Being a basic rabble-rouser, it fit his views,” Caddell said.

Robert Mercer asked Caddell to confirm the poll’s findings, offering to pay the costs. Caddell told The Post the follow-up poll did just that. The charities and their media allies began to coalesce around the discontent that Caddell documented.

Full disclosure to readers: time for a confession. I was there. Before the subpoenas arrive, I want to make it clear that I was not at the briefings with the Mercers, though I did speak one-on-one with Pat Caddell, Jeff Sessions, and David Horowitz. I was a panelist on one of the programs at the meeting, as was AT co-founder Richard Baehr. I hope we won’t need to hire lawyers. There were hundreds of people there.

It is clear that the WaPo hopes to put the David Horowitz Center’s tax exemption up for dispute. But that would require a double standard, since there are far more tax exempt non-profits on the left, that avoid explicit partisan activity, while engaging in political activity.  Which means that the IRS will feel plenty of heat and may put Horowitz’s charity through hell.

 

Tom Fitton discusses Shocking, New Clinton Emails, Soros Lawsuit, Clean Elections, & Immigration

June 2, 2017

Tom Fitton discusses Shocking, New Clinton Emails, Soros Lawsuit, Clean Elections, & Immigration, Judicial Watch via YouTube, June 2, 2017

 

If the President Is Not the Subject of a Criminal Investigation, Then Say So

May 19, 2017

If the President Is Not the Subject of a Criminal Investigation, Then Say So, PJ Media, Andrew C. McCarthy, May 19, 2017

Succeeding Louis F. Freeh in Washington, DC. Robert Mueller named special prosecutor for Russia probe, Washington DC, USA – 17 May 2017 (Rex Features via AP Images)

Thus, to the extent it involves the president, the investigation announced to the public is a counterintelligence probe. That matters because it would mean the president is not a criminal suspect. A counterintelligence probe is not intended to build a criminal prosecution. It is intended to collect information. Its purpose is to uncover the actions and intentions of foreign powers to the extent they bear on American interests.

To this point, after months of congressional and intelligence-community investigations, there appears to be no evidence, much less strong proof, of a crime committed by Trump. But Democrats calculate that the assignment of a prosecutor implies that there must be an underlying crime — an implication that Sen. Graham’s comments reinforce. That is why they pushed so hard for a special counsel. It fills a big hole in their narrative. They can now say, “What do you mean no crime? They’ve appointed a prosecutor, so there must be a crime — collusion, obstruction, Russia … it’s a crime wave!”

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Well is he, or isn’t he?

Almost everything in a counterintelligence investigation is classified. And much of what goes on in a criminal investigation is secret, kept confidential by investigators and prosecutors. But there is one thing that need be neither classified nor otherwise concealed from the American people: the status of the president.

Is the president of the United States the subject of a criminal investigation?

If he is not, then the Justice Department and special counsel Robert Mueller owe it to the country to say so. There is no reason to be coy about it. In fact, because a president under criminal suspicion would be crippled, his inability to govern detrimental to the nation, it is imperative to be forthright about his status.

Instead, political games are being played and the public is forming an impression — which I strongly suspect is a misimpression — based on semantics. There is no guaranteed outcome in an investigation, but the government should not be able to keep from us the precise nature of the investigation when it involves the president and when the fact that there is an investigation has already been disclosed publicly.

We’ve been told that the main investigation, the one that deputy attorney general Rod Rosenstein has appointed special counsel Mueller to conduct, is a counterintelligence investigation. That is what former FBI director James Comey revealed (with the approval of the Justice Department) in House testimony on March 20:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. (Emphasis added.)

In appointing Mueller on May 17, Rosenstein issued an internal Justice Department order stating:

The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including (i) any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump[.]

Thus, to the extent it involves the president, the investigation announced to the public is a counterintelligence probe. That matters because it would mean the president is not a criminal suspect. A counterintelligence probe is not intended to build a criminal prosecution. It is intended to collect information. Its purpose is to uncover the actions and intentions of foreign powers to the extent they bear on American interests.

Yet the New York Times reports that Rosenstein, in briefing the Senate Thursday:

 … affirmed that the Justice Department’s inquiry was focused on possible crimes.

This portrayal of the purported “focus” of the investigation was echoed by several senators, including Republicans Lindsey Graham and John Cornyn.

To be clear, I don’t believe Graham and Cornyn are trying to create a misimpression. To the contrary, I think they are hoping to scale back high-profile congressional hearings about the controversy. Hearings that are paralyzing the administration and frittering away the legislative time needed to push forward the Trump agenda of addressing Obamacare’s ongoing collapse, tax reform, border enforcement, the confirmation of executive officials and judges, and so on.

Yet, listen to Sen. Graham:

You’ve got a special counsel who has prosecutorial powers now, and I think we in Congress have to be very careful not to interfere.

What he means is that once a Justice Department investigation gears up, Congress should back off. But his choice of words would lead any reasonable person to infer: “Ah-hah! Now we have a serious criminal investigation. People are going to be prosecuted.”

On the Democrats’ part, this conflation of intelligence and criminal investigations is quite intentional.

If the probe of Trump’s campaign is about crimes (rather than intelligence about Russia), then they move much closer to the ultimate goal of impeachment, to say nothing of the immediate goals of derailing Trump’s agenda and reaping an electoral windfall in 2018.

This has been one of my main objections to the appointment of a special counsel. To this point, after months of congressional and intelligence-community investigations, there appears to be no evidence, much less strong proof, of a crime committed by Trump. But Democrats calculate that the assignment of a prosecutor implies that there must be an underlying crime — an implication that Sen. Graham’s comments reinforce. That is why they pushed so hard for a special counsel. It fills a big hole in their narrative. They can now say, “What do you mean no crime? They’ve appointed a prosecutor, so there must be a crime — collusion, obstruction, Russia … it’s a crime wave!”

In advancing this storyline, Democrats have gotten plenty of help from the FBI and the Justice Department.

In his March 20 testimony, Comey elaborated:

As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

With due respect, this is a heavy-handed way of putting it. As is well-known throughout the FBI and Justice Department, it is not permissible to use counterintelligence investigative authority to conduct what is in reality a criminal case. It is true enough that if, in the course of a counterintelligence probe, FBI agents incidentally discover that crimes have been committed, they are not required to ignore those crimes. But the agents do not go into a counterintelligence probe with an eye toward collecting criminal evidence. If the point is to build a criminal case, you do a criminal investigation.

Rosenstein’s clumsily worded order also contributes to the confusion. The Comey testimony cited by Rosenstein made it clear that there is a broad investigation of Russian interference in the 2016 election, and that examining the nature of links and coordination — if any — between the Trump campaign and the Russian regime is just a part of it. Rosenstein’s order, by contrast, describes the investigation as if its sole focus is ties between the Trump campaign and Russia. For the life of me, I don’t understand why he framed it that way; he could simply have referred to “the investigation confirmed by” Comey and left it at that. Why would the Trump Justice Department gratuitously highlight the notion of Trump-Russia ties when, so far, none have been proved?

Moreover, Rosenstein’s memo goes on to explain that Mueller’s investigative jurisdiction includes any “matters” that arise out of the investigation. This is unavoidable: it needs to be clarified that the special counsel has authority to prosecute any crimes he may stumble upon while conducting the counterintelligence investigation. But the expression of this happenstance reinforces the notion that crimes have been committed.

And of course, crimes may well have been committed … but not, so far as we know, by Trump.

We might think about the main investigation, the counterintelligence investigation, as the mother ship. Attached to it, but not part of its core, are barnacles. There is the investigation of Michael Flynn, which is known to be a criminal probe — there is a grand jury issuing subpoenas, which is not something that happens in a counterintelligence investigation. There have also been suggestions of a barnacle, potentially criminal in nature, related to former Trump campaign chairman Paul Manafort, related to shady dealings with Ukrainian pols tied to Putin, in the years prior to the campaign.

Evidence of this (potentially) criminal activity came to light because the FBI and Justice Department were conducting the main counterintelligence investigation. Consequently, the activity comes within the special counsel’s jurisdiction — he is authorized to investigate and prosecute it. But this does not convert the main investigation into a criminal investigation. It is still a counterintelligence investigation.

So notice the cynical game: the public statements of the FBI, the Justice Department, and Democrats exploit the fact of the counterintelligence investigation as a basis for saying that agents are investigating Trump. But they are not investigating him as a criminal suspect — the subject of the counterterrorism investigation is Russia; Trump is relevant only to the extent that people connected to his campaign may have ties to Russia.

In tandem, the public statements of the FBI, the Justice Department, and Democrats exploit the fact that the activities of Flynn and Manafort are part of the investigation in order to describe the investigation as “criminal.” But the criminal aspects of the investigation are tangential to the main event, Russia and any potential ties to Trump, which is not criminal.

See the trick? Trump is part of the investigation, the investigation is part criminal, ergo: Trump must be a criminal suspect.

Such word games should not happen.

No one appreciates more than I do the importance of discretion in official public announcements about investigations. But when officials choose to make highly unusual public acknowledgments that an investigation is taking place, they should never create a misimpression. If they have done so, however inadvertently, they must clarify the record.

It is very simple, if President Trump is the subject of a criminal investigation, the Justice Department owes it to the American people, and to Trump, to say so. If he is not the subject of a criminal investigation, they should say so — and they should cease and desist suggestions to the contrary.

A Coup Attempt, Not a Constitutional Crisis

May 19, 2017

A Coup Attempt, Not a Constitutional Crisis, PJ MediaDavid P. Goldman, May 18, 2017

Trump won by calling attention to the errors of his opponents and by dominating the news cycle. He played continuous offense. At the White House, by contrast, Trump has appeared cautious in stating his foreign policy goals, and defensive in responding to attacks on his performance and propriety. The policy issues that stood out clear during the campaign and helped Trump outflank the Republican Establishment have become fuzzy, especially after the firing of Gen. Flynn.

With the policy issues out of focus, Trump has lost control of the news cycle, and risks letting the news cycle control him. His opponents won’t succeed in dislodging him. But they have succeeded in distracting Trump from his policy agenda.

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A ranking Republican statesman this week told an off-the-record gathering that a “coup” attempt was in progress against President Donald Trump, with collusion between the largely Democratic media and Trump’s numerous enemies in the Republican Party. The object of the coup, the Republican leader added, was not impeachment, but the recruitment of a critical mass of Republican senators and congressmen to the claim that Trump was “unfit” for office and to force his resignation.

It’s helpful to fan away the psychedelic fumes of allegation and innuendo and clarify just what Trump might have done wrong. Trump will not be impeached, and he will not be harried out of office. But he faces a formidable combination of media hostility—what the president today denounced as a “witch hunt”—and a divided White House staff prone to press leaks. The likely outcome will be a prolonged dirty war of words that will delay Trump’s domestic agenda and tie down his loyalists with the chores of fire-fighting.

One thinks of Gulliver tied down by the Lilliputians. Trump was elected by campaigning against the Republican Establishment as well as Obama, ridiculing their policy blunders in Iraq and Afghanistan and questioning their credibility. In the flurry of personal attacks, the underlying policy issues have faded into the background, and that gives the initiative to Trump’s enemies.

Nothing that has been alleged, much less proven, about President Trump comes close to the threshold for impeachment, as Prof. Jonathan Turley of George Washington University’s law school explained in a May 17 comment in The Hill. Even if Trump asked then FBI Director James Comey to go easy on Gen. Michael Flynn, Prof. Turley notes, “Encouraging leniency or advocating for an associate is improper but not necessarily” illegal. The charge of obstruction of justice presumes that there is an issue before the bar of justice, but as Turley adds, “There is no indication of a grand jury proceeding at the time of the Valentine’s Day meeting between Trump and Comey. Obstruction cases generally are built around judicial proceedings — not Oval Office meetings.”

The appointment of respected former FBI Director Robert Mueller as special counsel to look into allegations of Russian interference in the November 2016 election strongly suggests that the Trump team feels it has nothing to fear from a thorough review. In this case Trump’s detractors appear to be bluffing. Press reports of contacts between Trump’s campaign and Russian diplomats and businessmen appear to reflect the sort of conversations that every presidential campaign conducts with important foreign governments. It is not clear that Russia was responsible for the delivery of embarrassing Democratic National Committee emails to Wikileaks, moreover. Pro-Trump media report that DNC staffer Seth Rich was Wikileaks’ source. Rich was murdered on a Washington street in July 2016, and a counter-conspiracy theory is circulating about his death.

Then there is the alleged leak of highly classified intelligence on the laptop bomb threat to airliners, of which Wall Street Journal editors intoned, “Loose Lips Sink Presidencies.” Exactly what the president told the Russians is under dispute, but the salient fact in the case is that presidents and cabinet members frequently leak classified information without prompting the condemnations that piled up on Trump. Obama’s then Defense Secretary Leon Panetta leaked the role of Pakistani physician Shakil Afridi in locating Osama bin Laden’s lair, and President Obama himself revealed that Seal Team 6 had killed Osama, making the unit a subsequent  target for terrorists. Apart from inadvertent leaks, the Obama administration deliberately leaked British nuclear secrets to Russia, over bitter protests from London.

Why did Obama get a pass while Trump got the bum’s rush? Apart from the antipathy of the major media to a candidate who campaigned against them, there is the hostility of the intelligence agencies. That, the Wall Street Journal editors said, is Trump’s own fault: “Mr. Trump’s strife and insults with the intelligence community were also bound to invite blowback,” their May 17 editorial scolded. “In that case the public leaks about Mr. Trump’s actions, if true, will do more damage than whatever he said in private.”

The Journal editors imply that disaffection in the intelligence community is the result of Trump’s obstreperousness, but the source of the dispute is policy and accountability. Trump’s first national security adviser, Gen. Michael Flynn, was fired by Obama as head of the Defense Intelligence Agency for claiming that U.S. intelligence agencies bore some responsibility for the emergence of ISIS. The CIA funded Sunni rebels against the Assad regime including many from a branch of al-Qaeda, the al-Nusra Front, in its campaign to overthrow Syrian President Bashar al-Assad. Trump has shifted America’s priority to stopping the bloodshed in Syria rather than forcing out al-Assad, and is willing to work with Russia to achieve this—provided that the result doesn’t give undue influence to Iran, a senior administration official explained.

A shift to peacemaking and the limited possibility of a regional deal with Russia away from the covert war operations of the CIA under the Obama administration represents a major policy change. It threatens the credibility of Sen. McCain, the Wall Street Journal editorial page, and the Republican Establishment, not to mention the CIA officials who made their careers on collaboration with Syria’s Sunni rebels.

During the campaign, candidate Trump delivered an effective message that he would abandon the costly and unpopular nation-building campaigns of his predecessors and focus instead on America’s own security. He attacked not only Obama but the George W. Bush administration and the Republican Establishment which had fostered a failing policy in the region.

Trump won by calling attention to the errors of his opponents and by dominating the news cycle. He played continuous offense. At the White House, by contrast, Trump has appeared cautious in stating his foreign policy goals, and defensive in responding to attacks on his performance and propriety. The policy issues that stood out clear during the campaign and helped Trump outflank the Republican Establishment have become fuzzy, especially after the firing of Gen. Flynn.

With the policy issues out of focus, Trump has lost control of the news cycle, and risks letting the news cycle control him. His opponents won’t succeed in dislodging him. But they have succeeded in distracting Trump from his policy agenda.

Is Trump Derangement Syndrome curable?

May 17, 2017

Is Trump Derangement Syndrome curable? Bill Whittle Channel via YouTube, May 16, 2017

 

Trump’s “Muslim Ban,” Obamacare and Sally Yates

May 12, 2017

Trump’s “Muslim Ban,” Obamacare and Sally Yates, Dan Miller’s Blog, Dan Miller, May 12, 2017

(The views expressed in this article are mine and do not necessarily reflect those of Warsclerotic or its other editors. — DM)

President Trump’s initial executive order imposed a temporary ban on refugees from seven countries where terrorism is endemic and information on potential refugees is scant, pending development of a workable vetting procedure. He later vacated the initial order and replaced it with one affecting only six countries and making other changes not relevant to the points addressed in this article. 

The initial executive order was rejected as unconstitutional, apparently because in violation of the First Amendment (freedom of religion), by several district court judges and the replacement order has had the same fate. The rulings were based, not on the text of the orders, but on Candidate Trump’s campaign references to a “Muslim ban.” Both orders applied equally to non-Muslims and Muslims from the subject countries. Neither mentioned, nor banned, nor applied to anyone from, any other Muslim majority country. According to the Pew Research Center, in 2010 there were “49 countries in which Muslims comprise more than 50% of the population.”

On May 11th, law Professor Jonathan Turley wrote an article titled Sally in Wonderland: The “Curiouser and Curiouser” Position of The Former Acting Attorney General. It deals with the testimony of now-former (fired) acting Attorney General Sally Yates concerning her refusal to allow the Department of Justice to support President Trump’s initial executive order. Ms. Yates was a hold-over from the Obama administration.

Professor Turley opined on Ms. Yates’ decision in the context of this graphic:

Sometimes congressional hearings bring clarity to controversies. Many times they do not. Controversies can become “curiouser and curiouser,” as they did for Alice in Wonderland. That was the case with the testimony of fired acting Attorney General Sally Yates before the Senate Judiciary Committee this week discussing her unprecedented decision to order the entire Justice Department not to assist President Trump in defending the first immigration order. Yates was lionized by Democratic senators as a “hero” and has been celebrated in the media for her “courageous stand.” However, for those concerned about constitutional law and legal ethics, there is little to celebrate in Yates’ stand. Indeed, her explanation before the Senate only made things more confusing. It was a curious moment for the new Alice of the Beltway Wonderland: “Curiouser and curiouser!” cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English).”

There has been considerable speculation on why Yates would engineer such a confrontation, but what is more important is her justification for ordering an entire federal department to stand down and not to assist a sitting president. Yates’ prior explanation fell considerably short of the expected basis for such a radical step. She dismissed the review of the Office of Legal Counsel (OLC) by insisting that those career lawyers only look at the face of the order and did not consider Trump’s campaign statements and his real motivations. Of course, many question the use of campaign rhetoric as a basis for reviewing an order written months later by an administration. Most notably, Yates did not conclude that the order was unconstitutional (in contradiction with her own OLC). Rather, she said that she was not convinced that the order was “wise or just” or was “lawful.” She does not explain the latter reference but then added that she was acting on her duty to “always seek justice and stand for what is right.” That is a rather ambiguous standard to support this type of obstruction of a sitting president. [Emphasis added.]

. . . .

Sen. John Kennedy, R-La., asked, “Did you believe, then, that there were reasonable arguments that could be made in its defense?” In an astonishing response, Yates said no because she decided on her view of Trump’s real intent and not the language of the order. However, many judges disagree with implied motive as the appropriate standard for review, as evidenced by the oral argument this week before the Fourth Circuit. More importantly, at the time of her decision, many experts (including some of us who opposed the order) were detailing how past cases and the statutory language favored the administration. It is ridiculous to suggest that there were no reasonable arguments supporting the order. [Emphasis added.]

I agree with Professor Turley’s analysis and posted the following comment arguing that there is Supreme Court precedent for ignoring politically oriented campaign rhetoric such as Candidate Trump’s reference to a “Muslim ban.”

Ms. Yates testified that substantially the same standards of review apply to executive orders as to acts of Congress.

When Obamacare was under discussion prior to enactment and when it was enacted, its basis was claimed to be the Commerce Clause of the Constitution. Those who wrote Obamacare and those who voted for it rejected the notion that it was a tax because to accept that classification would have been political suicide. President Obama did not suggest to the public that Obamacare was a tax. He claimed that it was appropriate under the Commerce Clause. As I recall, counsel for the Government rejected classification as a tax during oral argument, relying instead on the commerce clause.

The majority opinion written by Chief justice Roberts held that although violative of the Commerce clause, Obamacare was permissible instead under the powers granted by the Constitution to impose taxes and was, therefore, compliant with the Constitution. Even after the decision was released, President Obama continued to claim that it was not a tax.

Chief Justice Roberts cited the Congressional power to tax the non-purchase of gasoline — something the Congress had never done as to gasoline or any other commodity or service. He did not suggest how it could be done: tax everybody who fails to purchase gasoline, only the owners of automobiles, only the owners of gasoline reliant automobiles, only those owning such automobiles but failing to purchase specified quantities, and so on. As I recall, Prof. Turley wrote an article questioning the majority opinion’s reliance on the taxing powers of Congress. [Professor Turley wrote about the decision in an article title Et tu, Roberts? Federalism Falls By The Hand Of A Friend.– DM]

The evident basis of the Obamacare decision was the notion that acts of Congress are to be upheld if there is any Constitutional basis for doing so — despite politically motivated statements by members of Congress who had voted for it and despite assertions by the President and others that it was not a tax. Under the standard applied by Ms. Yates to President Trump’s executive order, such statements would have rendered Obamacare unconstitutional and obligated her, as Acting Attorney General, to refuse to support it in court. [Emphasis added.]

Ms. Yates was asked neither about the standard applied by the Supreme Court in upholding Obamacare nor her application of an apparently different standard to President Trump’s executive order.

The judges who have thus far rejected President Trump’s initial and second executive order adopted the same rationale as Ms. Yates. The judges who upheld the orders obviously did not.

It is probable that the Supreme Court will eventually decide on the constitutionality of President Trump’s revised executive order, particularly if (as seems likely) there is a split in the circuits. Justice Gorsuch will likely be among the justices who decide the case and the executive order will very likely be held constitutional. There will probably be more than five votes for its affirmation.

In the meantime, America will continue to receive substantial numbers of unvetted and potentially dangerous refugees whose admission the executive orders were intended to prevent. Oh well. What’s a few more American deaths by jihadists? What difference at this point does it make?