RIVKIN 2
see main 20 tags!
7/18 evil pending (congrats, wi sup ct)
cf ggl doc
SEE LEO
enron --> gt recession
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he is about to argue scotus ~ income tax?!
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9 23 an no lnx few
Ethics complaint accuses Justice Alito of scheme to thwart congress
Jake Johnson
September 05, 2023
Democratic Sen. Sheldon Whitehouse filed an ethics complaint against Supreme Court Justice Samuel Alito on Tuesday, accusing the right-wing judge of improperly interfering with congressional efforts to reform the scandal-plagued high court.
The complaint points to Alito's comments in a recent Wall Street Journal interview conducted in part by David Rivkin, an attorney for notorious Federalist Society co-chair Leonard Leo. Rivkin is also representing the plaintiffs in a case that could preemptively ban lawmakers from enacting a wealth tax.
In their write-up of the Alito interview, Rivkin and Journal editor James Taranto specifically mention Whitehouse's Supreme Court ethics legislation, which passed out of the Senate Judiciary Committee in a party-line vote in July. The bill, which has not yet received a vote in the full Senate, would require the Supreme Court to adopt a binding code of ethics—something every other federal court in the U.S. has done.
Rivkin and Taranto follow their brief summary of the legislation with a quote from Alito, who said, "No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period."
Whitehouse argued in his new ethics complaint that Alito's "decision to opine publicly on the constitutionality of that bill may well embolden legal challenges to the bill should it become law."
The complaint, which was sent to Chief Justice John Roberts, continues:
Justice Alito's opining will also fuel obstruction of our Senate investigations into these matters. To inform its work on my bill and other judicial ethics legislation, and oversee the performance of the statutory Judicial Conference in this arena, the Senate Judiciary Committee is investigating multiple reports that Supreme Court justices have accepted and failed to disclose lavish gifts from billionaire benefactors. Separately, the Senate Finance Committee is investigating the federal tax considerations surrounding the billionaires' undisclosed gifts to Supreme Court justices. Both committees' inquiries have been stymied by individuals asserting that Congress has no constitutional authority to legislate in this area, hence no authority to investigate. Justice Alito's public comments prop up these theories.
Alito's comment about Congress' supposed powerlessness to regulate the high court prompted outrage and rebuttals at the time, with New York Times columnist Jamelle Bouie calling it "a categorical statement of judicial supremacy that also stands as a glimpse into the arrogance of one justice on a court that falsely sees itself as the only and final authority on what the Constitution means."
Whitehouse's complaint emphasizes that Alito's comment was made to an individual who is representing Leo—a key architect of the right-wing takeover of the Supreme Court—as the Senate investigates him over "actions to facilitate gifts of free transportation and lodging that Justice Alito accepted from Paul Singer and Robin Arkley II in 2008."
As ProPublica reported in June, Leo "helped organize" the undisclosed luxury fishing vacation that Alito took with Singer, a billionaire hedge fund tycoon who later had business before the Supreme Court. Singer also had financial ties to supporters of legal challenges filed against President Joe Biden's initial student debt cancellation plan, which Alito and the rest of the high court's conservative supermajority struck down in June.
"The timing of Justice Alito’s opining suggests that he intervened to give his friend and political ally [Leo] support in his effort to block congressional inquiries," Whitehouse's complaint states.
The complaint also points to the "unpleasant fact" that "Alito's opining apparently at the behest of his friend and ally's lawyer, props up an argument being used to block inquiry into undisclosed gifts and travel received by Justice Alito."
"In the worst case facts may reveal, Justice Alito was involved in an organized campaign to block congressional action with regard to a matter in which he has a personal stake," the complaint reads. "Whether Justice Alito was unwittingly used to provide fodder for such interference, or intentionally participated, is a question whose answer requires additional facts. The heart of any due process is a fair determination of the facts. Uniquely in the whole of government, the Supreme Court has insulated its justices from any semblance of fair fact-finding."
"The obstructive campaign run by Mr. Rivkin and Mr. Leo, fueled by Justice Alito's opining, appears intended to prevent Congress from gathering precisely those facts," the complaint adds. "The Supreme Court should not be helpless when it comes to policing its own members' ethical obligations. But it is necessarily helpless if there is no process of fair fact-finding, nor independent decisionmaking. I request that you as chief justice, or through the Judicial Conference, take whatever steps are necessary to investigate this affair and provide the public with prompt and trustworthy answers."
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THE WEEKEND INTERVIEW
Samuel Alito, the Supreme Court’s Plain-Spoken Defender
He has emerged as an important justice with a distinctive interpretive method that is pragmatic yet rooted in originalism and textualism.
By David B. Rivkin Jr. and
James Taranto
July 28, 2023
via realclear
the Supreme Court usually makes news by making decisions, and it’s done plenty of that lately. In its first two terms with a 6-3 conservative majority,the justices have revisited old precedents and established new ones [THAT IS IGNORED STARE DECISIS] on abortion, gun rights, racial discrimination, freedom of speech and religion, the power of unelected federal regulators and more.
By comparison with the previous eight decades or so, the court has frequently declined to defer toelite political opinion, and as a result it has made news in other ways. A draft abortion opinion was leaked to the press. An armed man was arrested outside the home of Justice Brett Kavanaugh and charged with attempted assassination. The justices have come under attack from President Biden (“this is not a normal court”) and Democratic lawmakers. Partisan journalists have tried to gin up “ethics” scandals and incite animus against disfavored justices.
“I marvel at all the nonsense that has been written about me in the last year,” Justice Samuel Alitosays during an early July interview at the Journal’s New York offices. In the face of a political onslaught, he observes, “the traditional idea about how judges and justices should behave is they should be mute” and leave it to others, especially “the organized bar,” to defend them. “But that’s just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself.”
He does so with a candor that is refreshing and can be startling. He spoke with us on the record for four hours in two wide-ranging sessions, the first in April in his chambers at the court. In the interim, he wrote an op-ed for these pages responding in detail to a hit piece from ProPublica,a self-styled “independent, nonprofit newsroomthat produces investigative journalism with moral force.” Many of the court’s critics claim to want more “transparency.” Their hostile reactions to our April interview and his June op-ed suggest—no surprise—that they’re really after ideologically congenial rulings, not to mention conformist press coverage.
Justice Alito, 73, was appointed in early 2006 and is now the second most senior associate justice. He has emerged as an important voice on the court with a distinctive interpretive method that is rooted in originalism and textualism—adherence to the text, respectively, of the Constitution and statutes—but in some ways more pragmatic than that of Justice Clarence Thomas or Neil Gorsuch.
“There are very serious differences” in how the six conservative justices approach cases, Justice Alito says. The simplest difference involves respect for precedent: Justice Thomas “gives less weight to stare decisis than a lot of other justices.” It is, “in its way, a virtue of his jurisprudence,” Justice Alito says. “He sticks to his guns.”
That’s why Justice Thomas writes many lone concurrences. In Dobbs v. Jackson Women’s Health Organization (2022), he argued that “in future cases, we should reconsider all of this Court’s substantive due process precedents,” including those involving same-sex marriage, contraception and consensual sodomy. Justice Alito’s majority opinion carefully distinguished those issues from abortion. Justice Thomas often disregards precedents with which he disagrees and follows his own route to the majority’s destination—to cite a recurring example, by relying on the 14th Amendment’s Privileges or Immunities Clause rather than the Due Process Clause. The disadvantage of this approach, Justice Alito says, “is that you drop out of the conversation, and . . . lose your ability to help to shape what comes next in the application of that rule.”
Justice Gorsuch has an ornery streak that has shown itself in cases involving Indian law, crime and discrimination. “He’s definitely not a consequentialist,” Justice Alito says of his colleague—meaning he is less concerned with the real-world effects of following his principles.
An example is Ramos v. Louisiana (2020), which overturned a pair of 1972 precedents and held that the Sixth Amendment’s right to a jury trial requires unanimity for a finding of guilt in state court. Every state but Louisiana and Oregon already required unanimous verdicts, but “Ramospotentially affected many, many criminal convictions that had been obtained . . . using nonunanimous jury verdicts, which had been specifically approved by the Supreme Court,” Justice Alito says. “Overruling those decisions had potentially vast consequences. . . . That was not a big factor in his analysis.”
As for Chief Justice John Roberts, “he puts a high premium on consensus. He rarely dissents.” He filed no outright dissenting opinions in the 2022-23 term and only one in 2021-22. He also “has expressed a very strong tendency to protect the prerogatives of the judiciary,” as in Bank Markazi v. Peterson(2016). The court upheld a law directing that Iranian assets targeted by successful plaintiffs in a specific terrorism case be seized to pay the judgment. The chief justice dissented against what he called an unacceptable intrusion on judicial power: “Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the winners and losers in particular pending cases.”
On the liberal side of the court, by contrast, “I don’t see that there’s a difference in interpretive method,” Justice Alito says. Yet he emphasizes that “we don’t always line up 6-3, 5-4, the way some people tend to think. If you look at all the cases, there are cases where the lineup is unusual.” Chief Justice Roberts wrote two election-law decisions this term, Allen v. Milliganand Moore v. Harper, in which he was joined by the three liberals and Justice Kavanaugh, along with Justice Amy Coney Barrett in the latter case.
Another prime example is National Pork Producers Council v. Ross, which upheld a California law banning the sale of meat from pigs that are “confined in a cruel manner”—almost all of which is produced in other states. The council argued that the law violated the Dormant Commerce Clause, a doctrine that limits states’ authority to enact policies that burden interstate commerce.
Justice Alito, who agreed with that view, says “it’s no secret that Justice Thomas and Justice Gorsuch don’t think that there is such a thing as the Dormant Commerce Clause.” Justices Barrett, Sonia Sotomayor and Elena Kagan signed on to parts of Justice Gorsuch’s opinion, providing a majority that let the law stand.
“I have not joined Justice Thomas, Justice [Antonin] Scalia, Justice Gorsuch in saying we should get rid of the Dormant Commerce Clause,” Justice Alito says. “I’ve written this in the Tennessee wine case—that the Constitution surely was meant to contain some principle that prevents the balkanization of the economy. That was one of the main reasons for calling the Constitutional Convention in Philadelphia.”
He refers to his 7-2 ruling in Tennessee Wine and Spirits Retailers Assn. v. Thomas (2019). In dissent, Justices Gorsuch and Thomas cited the 21st Amendment, which repealed Prohibition and gave states broad authority to regulate alcohol. Justice Alito’s majority opinion treated that provision “as one part of a unified constitutional scheme,” within which the lawmakers who ratified the 21st Amendment understood that “the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations.”
That demonstrates a central feature of Justice Alito’s jurisprudence: its emphasis on historical context. “I think history often tells us what the Constitution means,” he says, “or at least it can tell us what the Constitution doesn’t mean.” His dissent in Obergefell v. Hodges(2015) is a case in point. “It’s perfectly clear that nobody in 1868 thought that the 14th Amendment was going to protect the right to same-sex marriage,” he says. Before this century, “no society—even those that did not have a moral objection to same-sex conduct, like ancient Greece—had recognized same-sex marriage.” The first country to legalize it was the Netherlands, effective in 2001.
The same attention to history informs Justice Alito’s textualism. “I reject the idea that a statute should be interpreted simply by looking up the words in the dictionary and applying that mechanically,” he says. Justice Gorsuch did something like that in Bostock v. Clayton County (2020), in which the court held that Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination “because of . . . sex,” covers “sexual orientation and gender identity.”
Justice Gorsuch reasoned that because sex is essential to the definition of both categories, such discrimination is “because of” sex. But in 1964 homosexuality was subject to widespread disapprobation, and gender identity “hardly existed as a concept, even among professionals in the field,” as Justice Alito says. “When it’s very clear that the author of the text . . . cannot have meant something, then I don’t think we should adopt that interpretation, even if a purely semantic interpretation of the statute would lead you to a different result.”
Justice Alito’s respect for precedent has limits: “Some decisions—and I think that Roeand Caseyfell in this category—are so egregiously wrong, so clearly wrong, that’s a very strong factor in support of overruling.” Those are the 1973 and 1992 abortion cases that Dobbs overturned, with Justice Alito writing for a majority of five. Chief Justice Roberts provided a sixth vote to uphold Mississippi’s 15-week abortion ban but urged “a more measured course” that would narrow the precedents while deferring the question of whether to overturn them altogether.
Justice Alito has been known to take a similarly incremental approach. His opinion for the court in Janus v. Afscme (2018) held that compelling public employees to pay union dues violated the First Amendment, and it overturned a 1977 precedent, Abood v. Detroit Board of Education. A foretaste came in Harris v. Quinn(2014), also written by Justice Alito, which subjected Abood to a withering critique but left it standing.
“The question how broad a decision should be—should we overrule a prior precedent when we really don’t have to in order to decide this case?—it’s a judgment call,” he says. “There can be reasons for deciding the case more narrowly. Maybe we’re not sure whether it should be overruled. Maybe we think it would be better if the issue were highlighted for others to address first—scholars, lower-court decisions. Maybe it’s a question of what a majority of the court is willing to go along with.”
That last contingency sometimes depends on events more than philosophy. Justice Ruth Bader Ginsburg died in September 2020, and President Trump appointed Justice Barrett to succeed her. Had Ginsburg lived a few months longer, the chief justice’s tentative approach might have prevailed in Dobbs. Or perhaps the justices wouldn’t have taken the case.
In the 2023-24 term, the court will consider whether to overturnChevron v. NRDC (1984), an increasingly disputed precedent that requires courts to defer to administrative agencies’ interpretations of ambiguous statutes. Justice Alito is careful not to state a position on Chevron,but he does make a pertinent broader point about precedent: “I’m not in favor of overruling important decisions just by pretending they don’t exist but refusing to say anything about them.”
He says that’s what his colleagues did last month in U.S. v. Texas, the term’s only case that had him alone in dissent. The court threw out Texas’ challenge to lax Biden administration immigration guidelines on the ground that the state lacked standing to challenge them in court. But Justice Alito says Texas’ claim of injury “was the same as—in fact, stronger than—that of Massachusetts in Massachusetts v. EPA,” a 2007 case that opened the door to federal regulation of greenhouse gases. “The court just hardly said a word about Massachusetts v. EPA.”
The Biden policies suspended all enforcement measures for certain categories of illegal aliens, despite statutory language to the contrary—a clear violation, in Justice Alito’s view, of the president’s express constitutional duty to ensure that the law be faithfully executed. How did all eight of his colleagues end up on the other side? “I have no idea,” he says. “I honestly don’t. Why did it turn out that way? Because it involves immigration? Because it’s vaguely connected to Trump? I don’t know. I don’t know what the explanation is.”
After the justices reconvene on the first Monday in October, they will continue making news in the usual way. Among the issues on the fall docket, along with the reconsideration of Chevron: whether South Carolina impermissibly gerrymandered its congressional districts by race, whether the Consumer Financial Protection Bureau’s funding scheme is unconstitutional,whether Congress can tax unrealized investment income, and whether someone subject to a domestic-violence restraining order can be deprived of his right to possess firearms. (Mr. Rivkin and a law partner, Andrew Grossman, represent the appellants in Moore v. U.S.,the tax case.)
The attacks on the court are sure to keep coming as well. Last week the Senate Judiciary Committee voted along party lines to advance Sen. Sheldon Whitehouse’s Supreme Court Ethics, Recusal and Transparency Act, which purports to impose on the justices and their clerks regulations “at least as rigorous as the House and Senate disclosure rules.”
Justice Alito says he voluntarily follows disclosure statutes that apply to lower-court judges and executive-branch officials; so do the other justices.But he notes that “Congress did not create the Supreme Court”—the Constitution did. “I know this is a controversial view, but I’m willing to say it,” he says. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”
Do the other justices agree? “I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say. But I think it is something we have all thought about.”
The political branches have other weapons they could deploy against the court. The Constitution doesn’t specify the number of justices, so Congress could pack the court by enacting legislation to expand its size. Last week a pair of leftist law professors issued an “open letter” urging President Biden to “restrain MAGA justices” by applying their rulings as narrowly as possible. The day the court decided Biden v. Nebraska, striking down Mr. Biden’s student-loan forgiveness plan, the president announced that he was undertaking legally questionable alternatives.
Justice Alito wonders if outright defiance may be in the offing for the first time since the aftermath of Brown v. Board of Education(1954): “If we’re viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular. So you can have a revival of the massive resistance that occurred in the South after Brown.”
Will the justices’ recent rulings endure? The court shows little sign of yielding to external pressure, but its three liberal members stand ready to overturn many recent precedents from which they dissented. Whether they’ll have the opportunity likely depends on who holds the White House and the Senate when future high-court vacancies arise. About that prospect, Justice Alito demurs: “We are very bad political pundits.”
Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Taranto is the Journal’s editorial features editor.
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{{ LEO
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an 8 23
:{ former United States Department of Justice trial attorney under ex-President Bill Clinton is probing Republican billionaire and ex-President Donald Trump donor Leonard Leo along with "his network of nonprofit groups," POLITICO exclusively reports.
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Washington, D.C. Attorney General Brian Schwalb's investigation comes after the GOP billionaire and Federalist Society leader's trust fund, Marble Freedom Trust's latest Internal Revenue Service (IRS) filing revealed in June Leo's mission to control right-wing politics, according to a Truthout report.
Truthout notes the IRS filing obtained by progressive watchdog Accountable.US "shows the Federalist Society leader 'has dumped at least $411 million into fueling right-wing infrastructure in the U.S. since mid-2020.'"
POLL: Should Trump be allowed to hold office again?"
According to POLITICO, the probe also "comes after POLITICO reported in March that one of Leo's nonprofits — registered as a charity — paid his for-profit company tens of millions of dollars in the two years since he joined the company.'
The news outlet notes that "a few weeks later, a progressive watchdog group filed a complaint with the D.C. attorney general and the IRS requesting a probe into what services were provided and whether Leo was in violation of laws against using charities for personal enrichment."
POLITICO reports:
Best known as Donald Trump's White House 'court whisperer,' Leo played a behind-the-scenes role in the nominations of all three of the former president's Supreme Court justices and promoted them through his multi-billion-dollar network of nonprofits. Trump chose his three Supreme Court picks, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, from a list drawn up by Leo. More recently, Leo was the beneficiary of a $1.6 billion contribution, believed to be the biggest political donation in U.S. history.
"There are questions as to whether Leo-affiliated nonprofits have diverted substantial portions of their income and assets, directly or indirectly, to the personal benefit of Leonard Leo," the Campaign for Accountability's complaint said. "Such payments were generally listed as made in exchange for alleged consulting, research, public relations, or similar services. However CFA has reasonable questions about whether those alleged services were actually rendered at all or, if services were rendered, whether the payments made were substantially in excess of fair market value."
Per the report, "The news of the investigation comes as the nonprofit that was a subject of the complaint quietly relocated in recent weeks from the capital area to Texas, according to paperwork filed in Virginia and Texas," after "for nearly 20 years the nonprofit, now known as The 85 Fund, had been incorporated in Virginia."
The news outlet notes:
The Leo-aligned nonprofit The 85 Fund — which is registered as a tax-exempt charity — paid tens of millions of dollars to a public relations firm in Virginia which he co-chairs in the two years since he joined the firm, known as CRC Advisors. The watchdog complaintalleges the total amount of money that flowed from Leo-aligned nonprofits to his for-profit firms was $73 million over six years beginning in 2016.
According to POLITICO, attorney David B. Rivkin Jr., who represents the parties in the probe, "said in a statement that the complaint 'is sloppy, deceptive and legally flawed and we are addressing this fully with the DC Attorney General's office.'"
Politico's full report is available at this link.
HEIDI PRZYBYLA
08/22/2023
Washington
ZZZ D.C. Attorney General Brian Schwalb is investigating judicial activist Leonard Leo and his network of nonprofit groups, according to a person with direct knowledge of the probe.
The scope of the investigation is unclear. But it comes after POLITICO reported in March that one of Leo’s nonprofits — registered as a charity — paid his for-profit company tens of millions of dollars in the two years since he joined the company. A few weeks later, a progressive watchdog group filed a complaint with the D.C. attorney general and the IRS requesting a probe into what services were provided and whether Leo was in violation of laws against using charities for personal enrichment.
David B. Rivkin Jr., an attorney for the parties in the investigation, said in a statement that the complaint “is sloppy, deceptive and legally flawed and we are addressing this fully with the DC Attorney General’s office.”
The news of the investigation comes as the nonprofit that was a subject of the complaint quietly relocated in recent weeks from the capital area to Texas, according to paperwork filed in Virginia and Texas. For nearly 20 years the nonprofit, now known as The 85 Fund, had been incorporated in Virginia.
Gabe Shoglow-Rubenstein, Schwalb’s communications director, declined to confirm or deny the existence of the probe, including whether the attorney general took any action in response to the complaint.
Schwalb, who took office in January, has a background in tax law and served as a trial attorney in the tax division of the Department of Justice under President Bill Clinton.
Best known as Donald Trump’s White House “court whisperer,” Leo played a behind-the-scenes role in the nominations of all three of the former president’s Supreme Court justices and promoted them through his multi-billion-dollar network of nonprofits. Trump chose his three Supreme Court picks, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, from a list drawn up by Leo. More recently, Leo was the beneficiary of a $1.6 billion contribution, believed to be the biggest political donation in U.S. history.
He is also the co-chair of the Federalist Society, the academic arm of the conservative legal movement, for which he worked in various capacities for decades while building his donor base.
While Leo grants few interviews, in mid-July he was featured in a two-part podcast with the Maine Wire, a conservative news organization. Asked why he’s become a “lightening rod for criticism,” Leo cited his commitment to “defend the Constitution” and spoke about the “long history” of dark money in U.S. politics.
“It’s not to hide in the shadows,” he said. “It’s because we want ideas judged by their own moral and intellectual force.”
He did not address any allegations of potential misuse of nonprofit tax law.
Real estate and other public records illustrate that the lifestyle of Leo and a handful of his allies took a lavish turn in the course of the making of the current ultraconservative court, beginning in 2016, the year he was tapped as an unpaid adviser to Trump. Citing the report, a progressive watchdog group called on the IRSand D.C. Attorney General a few weeks later to investigate whether the groups may be violating their tax-exempt status by “siphoning” assets or income for personal use.
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Anthony Burke, a public affairs specialist with the IRS, declined to comment. “Under the federal tax law, federal employees cannot disclose tax return information,” he said.
The Leo-aligned nonprofit The 85 Fund — which is registered as a tax-exempt charity — paid tens of millions of dollars to a public relations firm in Virginia which he co-chairs in the two years since he joined the firm, known as CRC Advisors.
The watchdog complaintalleges the total amount of money that flowed from Leo-aligned nonprofits to his for-profit firms was $73 million over six years beginning in 2016.
“There are questions as to whether Leo-affiliated nonprofits have diverted substantial portions of their income and assets, directly or indirectly, to the personal benefit of Leonard Leo,” read the Campaign for Accountability’s complaint.
“Such payments were generally listed as made in exchange for alleged consulting, research, public relations, or similar services. However CFA has reasonable questions about whether those alleged services were actually rendered at all or, if services were rendered, whether the payments made were substantially in excess of fair market value,” said the complaint, which covers the period between 2016 and 2020.
POLITICO reported that a total of $43 million flowed to Leo’s company over two years and that the bulk of it came from The 85 Fund, a nonprofit run by his allies which has spent tens of millions of dollars over the past decade to promote Trump’s Supreme Court picks, file briefs before the court and, more recently, used an alias to push for voting restrictions and
of cheating in the 2020 election.
It is now run by Carrie Severino, an attorney and former clerk for Justice Clarence Thomas listed as director in the group’s most recent IRS paperwork and is collecting massive amounts of anonymous funds: $117 million in 2021.
In discontinuing the group in the state of Virginia, the new address Severino listed is a virtual office suite in Fort Worth, Texas, shared by a “Two Men and a Truck”franchise. The office building advertises virtual and coworking spaces.
Further complicating the picture: in Texas, a new registration for “The 85 Fund” was filed on June 27 under yet a different address in a different city than the one listed on the Virginia paperwork. It is also registered in Texas as a for-profit entity.
This location is a UPS store in a strip mall next door to a restaurant called the “Snooty Pig Cafe.” As POLITICO previously reported, The 85 Fund had been using a UPS drop box in DC’s Georgetown neighborhood as its principal office address.
Beginning in 2016, Leo formed or helped reorganize two for-profit businesses — CRC Advisors and BH Group — to perform millions of dollars in services for his aligned nonprofits.
In those five years, BH Group brought in $15 million from the nonprofits. Yet unlike CRC, BH Group doesn’t appear to have advertised itself as a consulting or public relations firm, or even have had a website. During some of that time, Leo was employed full-time as a vice president at the nonprofit Federalist Society, raising questions about how he could have reasonably generated millions of dollars in consulting fees at the same time, the complaint says.
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The 85 Fund’s switch to the Fort Worth office building came days after POLITICO inquired, on June 30, about certain Leo allies who may have personally benefited from millions in anonymous donations that moved through the 85 Fund over the past decade.
A number of the groups that receive contributions from Leo’s “dark money” network, in turn, hold sizable contracts with his firm, CRC Advisors. This includes the Federalist Society, the nation’s preeminent conservative debating society where Leo was executive vice president and still serves as co-chairman. Among payments the complaint flagged to the IRS and DC attorney general is $3.1 million which the Federalist Society paid to CRC between 2020 and 2021 for “media training.”
On July 7, a Leo spokesperson offered an initial response to inquiries POLITICO had made about The 85 Fund, previously known as the Judicial Education Project. That was the day paperwork with Severino’s signature was filed “surrendering” The 85 Fund’s charter in Virginia.
In the paperwork, Severino stated the plan to move to Texas was adopted by a majority of the board of directors on Dec. 8, 2022. It has three board members. In addition to Severino, they include treasurer Gary Marx and chair Todd Graves, according to the latest IRS paperwork available.
It’s not the only major conservative nonprofit to have moved to Texas in recent years. The National Rifle Association, contesting multiple lawsuits from attorneys general in New York state and Washington, D.C., alleging violations of nonprofit law, announced in early 2021 that it would relocate to Texas.
Yael Fuchs, who was a senior lawyer on the New York case against the NRA, said Texas has limited regulation over charities, making it a more attractive legal environment for nonprofits.
“This gambit isn’t going to deprive the regulator [DC] of jurisdiction over past wrongdoing but it could create some hurdles,” she said. They include complications in gaining injunctive relief or obtaining evidence, “but there are ways of getting over those,” said Fuchs, former head of charities enforcement in the New York attorney general’s office.
It’s also not the first time a Leo-aligned group has shifted operations after media scrutiny.
A separate Leo-aligned group that appears to have been involved in the 2017 sale of GOP pollster Kellyanne Conway’s company was dissolved last fall,three days after POLITICO inquired about whether it helped to facilitate the multi-million-dollar deal while she was advising Trump on judicial candidates.
In his statement, Rivkin, the lawyer for the groups targeted in the CFA complaint, said CFA was connected to Arabella Advisors, a firm that was founded by former Bill Clinton appointee Eric Kessler. Leo has long compared his business practices to those of Arabella.
Both Michelle Kuppersmith, CFA executive director, and Steve Sampson, Arabella spokesperson, said their groups have no financial relationship. However, CFA was originally part of the Hopewell Fund, a nonprofit for which Arabella provides administrative support. CFA spun off from Hopewell in 2017, both groups confirmed.
Arabella is a for-profit company that provides administrative, HR and accounting services to largely philanthropic nonprofits which are largely independently run.
- FILED UNDER:
- U.S. SUPREME COURT,
- U.S. SUPREME COURT,
- FEDERALIST SOCIETY,
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https://www.alternet.org/playing-fast-loose-megadonor-watchdog/
an no lnx
How a Republican megadonor is 'playing fast and loose' to push 'dangerous, extreme agenda': watchdog
Maya Boddie June 18, 2023
Republican billionaire Leonardo Leo's trust fund, Marble Freedom Trust's latest Internal Revenue Service (IRS) filing, revealing the former President Donald Trump donor's mission to control right-wing politics, Truthout reports.
Progressive watchdog Accountable.US obtained the recent IRS filing, which according to Truthout, shows the Federalist Society leader "has dumped at least $411 million into fueling right-wing infrastructure in the U.S. since mid-2020."
Furthermore, according to Truthout, the filing reveals "Leo has spent at least $182 million during the Biden administration to fund right-wing groups from May 1, 2020, through April 30, 2022," noting, "This surge has come as Leo has become more publicly outspoken in attacking reproductive rights as well as efforts to protect our environment and crucial measures that advance Americans' equality."
READ MORE: Conservative activist arranged for Clarence Thomas’ wife to get secret payouts
Additionally, it "adds to the growing public knowledge of how Leo's for-profit business works in tandem with nonprofit groups he funds to change the rules in our democracy, and also provides a glimpse of how lucrative this effort is."
The news outlet reports prior to Accountable's findings, "the Campaign for Accountability filed an IRS complaint against Leo based on other filings showing that seven of his affiliated nonprofits had sent $73 million to his for-profit CRC Advisors."
Truthout also notes:
As Sen. Sheldon Whitehouse (D-Rhode Island) has noted, before the public learned of the existence of Marble Freedom Trust, Leo rose to prominence as a volunteer advising Trump by creating the list of Supreme Court candidates that Trump chose from, as well as by helping to secure the confirmation of three controversial high court nominees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett (and helped get numerous other lower court judges appointed). As True North documented, Leo's network played a central role in this right-wing court packing, raising over $600 million from 2014 through the 2020 election. This dark money network has received more than $2 billion when accounting for Marble.
Accountable President Kyle Herrig told Truthout he believes "Leonard Leo is playing fast and loose with his $1.6 billion slush fund, enriching himself and doling out paychecks and favors for his cronies," adding, "This kind of corruption is par for the course for Leo. It clearly pays to do his bidding."
READ MORE: Charities often move 'dark' money that shapes public policy: report
Herring said, "This is just the latest development in Leonard Leo's decades-long scheme to push his dangerous, extreme agenda and get rich while doing it. From personal enrichment for himself and his inner circle to his machine of nonprofits advancing the MAGA agenda, we’ve only scratched the surface of Leo’s devastating impact on our democracy."
READ MORE: 'Largest political donation ever': Trump ally received $1.6 billion through Federalist Society contact
Truthout's full report is available at this link.
FROM YOUR SITE ARTICLES
New report details Clarence Thomas’ 'shady ties to sprawling network of dark money' ›
'No mention of Ginni': Kellyanne Conway may have confirmed payments made to Clarence Thomas’ wife ›
Trump Supreme Court advisor Leonard Leo tied to more than $80 mllion in dark money ›
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apr 2023
https://truthout.org/articles/new-details-from-leonard-leos-trust-fund-expose-the-inner-workings-of-the-right/
newly obtained documents show that the billion-dollar trust fund given to Leonard Leo — the right-wing attorney and longtime leader the Federalist Society who orchestrated Donald Trump’s Supreme Court picks — has dumped at least $411 million into fueling right-wing infrastructure in the U.S. since mid-2020.
The latest IRS filing of the new nonprofit, Marble Freedom Trust — obtained by:{ }::{Accountable.US}:, a progressive watchdog group — shows that Leo has spent at least $182 million during the Biden administration to fund right-wing groups from May 1, 2021, through April 30, 2022. This surge has come as Leo has become more publicly outspoken in attacking reproductive rights as well as efforts to protect our environment and crucial measures that advance Americans’ equality.
Leo chose to have most of that, more than $153 million, wash through the Schwab Charitable Fund, a “donor-advised fund” that serves as a passthrough to help obscure the money trail between a funder and its beneficiaries. In recent years, since Leo secured control of $1.6 billion in the largest single gift of its kind from Chicago billionaire Barre Seid, Leo’s network of groups has relied heavily on donor-advised funds to move cash between entities in ways that can help keep the original donor secret from the public.
marble’s filing included only one other grantee: the Concord Fund (also known as the Judicial Crisis Network), to which it gave a $29 million gift. The Concord Fund then paid $12 million in fees to CRC Advisors, a for-profit PR firm that Leo has helped helm since 2020.
Kyle Herrig, the president of Accountable told Truthout that in his opinion “Leonard Leo is playing fast and loose with his $1.6 billion slush fund, enriching himself and doling out paychecks and favors for his cronies. This kind of corruption is par for the course for Leo. It clearly pays to do his bidding."
before Accountable’s latest revelations, theCampaign for Accountability filed an IRS complaint against Leo based on other filings showing that seven of his affiliated nonprofits had sent $73 million to his for-profit CRC Advisors.
Despite more than $1 billion in assets, Leo’s Marble Freedom Trust has no publicly known website, and its street address is actually a UPS drop box in Utah. Meanwhile, however, Marble disclosed spending nearly $250,000 on “office expenses.” Its disclosed phone number, with an area code for southeastern coast of Florida, has been held for years — well before Marble was created — by Leo’s longtime collaborator Neil Corkery, an anti-gay rights and anti-abortion operative central to Leo’s court capture network.
This latest filing also adds to the growing public knowledge of how Leo’s for-profit business works in tandem with nonprofit groups he funds to change the rules in our democracy, and also provides a glimpse of how lucrative this effort is.
Marble’s filing shows that in its second year of operations Leo gave himself a raise from $350,000 to $400,000 a year for working part-time (25 hours a week) for the trust he controls. It also reported that he spends 10 hours a week on Rule of Law Trust, a 501(c)(4) nonprofit launched in 2018 with a gift of nearly $80 million from a donor kept secret from the public. Leo is the only trustee of that entity, and Corkery holds its books. Like Marble, it has no website and its address is a drop box location. Its listed phone goes to a law firm.
Marble’s latest filing shows that Leo’s billion-dollar trust also added a new employee to its operations: Alex Marshall as CIO, an acronym that typically stands for Chief Information Officer. His salary was listed at a whopping $764,000.
According to Accountable, until 2021 Marshall was likely working as a branch manager for the investment firm Oppenheimer & Co., a brokerage firm and investment bank, and was likely making hundreds of thousands less because Marshall’s broker record indicates he completed “entry-level” financial industry exams for principal and supervisory roles.
How did Alex Marshall get plugged into Leo’s operation?
As True North Research’s Lisa Graves first uncloaked, Alex Marshall is married to Maria Marshall, who currently works at Leo’s CRC Advisors and previously worked for the Federalist Society, the networking group created to get right-wing lawyers into powerful offices. Marshall’s title was “director of operations” in the “Office of the Federalist Society’s Executive [Vice President].” That was Leo’s office, where she handled his schedule, among other roles. She previously worked as U.S. Sen. Arlen Specter’s scheduler.
She left her day job to work with Leo, who also left his day job at the Federalist Society in 2020 to help lead the PR firm Creative Response Concepts, which rebranded as CRC Advisors, though he still helps lead and fund the Federalist Society as co-chair of its board.
While she was working for Leo at the Federalist Society, Leo’s Rule of Law Trust paid nearly $600,000 to YAS, LLC. That is the name of the Washington, DC-filed consulting firm created in 2015 and owned by Maria Marshall. Leo’s Rule of Law Trust paid YAS another $175,000 in 2020, after he left his employment but not his leadership role with the Federalist Society.
The Marshalls were also guests at the special table purchased by the major “anonymous” donor to the renaming ceremony of George Mason University’s law school in tribute to Antonin Scalia, an event cohosted by Leo.
Allison Pienta, a George Mason student who worked with UnKoch My Campus to obtain public records, revealed that the anonymous donor who gave $20 million to rebrand the law school and put Leo in a key role was none other than Barre Seid. (Charles Koch also gave $10 million to fund the law school.) There is no indication that Seid, a notoriously secretive billionaire, was there at the Scalia tribute dinner cohosted by Leo.
The Marshalls were at that special table alongsideJonathan Bunch, who was later named as a successor trustee at Marble, meaning he is Leo’s potential successor at the billion-dollar trust. Bunch, who is now listed as president of CRC Advisors, was paid more than $1.5 million for consulting by Leo’s Rule of Law Trust in 2018, when he was also working at the Federalist Society with Leo. Two years later, as Heidi Przybyla from Politico documented, Bunch and his wife closed on a $1.28 million home on the Chesapeake Bay, a second home a few hours south of their longtime home in a suburb of Washington, D.C.
As Accountable uncovered, since the launch of YAS, the Marshalls also purchased a second home near the beach in Avalon, New Jersey, the third most expensive zip code in the state. That research revealed that the Marshalls rent out the home, valued at $1.38 million home, for up to $7,700 a week depending on the season.
As Robert O’Harrow Jr. and Shawn Boburg documented in the Washington Post, on the eve of the Senate vote on Brett Kavanaugh’s nomination by Donald Trump to the U.S. Supreme Court,Leo bought a $3.3 million seaside mansion in Maine.
Just two months after that story broke, and less than a year after he closed on the mansion, Leo paid off the mortgage in full, for more than $2 million, while he was still working as the executive vice president of the Federalist Society, with a six-figure salary. As the Post revealed, a year earlier, after Supreme Court Justice Anthony Kennedy announced his retirement and as Leo was advising Trump on packing the Supreme Court as well as aiding the effort to get Trump’s nominees confirmed, Leo paid offhis 30-year mortgage 22 years ahead of schedule.
As Politicolater detailed, after officially joining CRC Advisors, Leo bought a second mansion in Maine, and has spent his growing wealth by purchasing four new cars, paying private school tuition for his children, and obtaining a wine buyer and locker at Morton’s Steakhouse. He has also donated hundreds of thousands of dollars to religious groups and he has also spent money on electoral candidates himself. Additionally, Leo-tied nonprofits have directed millions of dollars to playing an increasing role targeting voters around elections.
As Sen. Sheldon Whitehouse (D-Rhode Island) has noted, before the public learned of the existence of Marble Freedom Trust, Leo rose to prominence as a volunteer advising Trump by creating the list of Supreme Court candidates that Trump chose from, as well as by helping to secure the confirmation of three controversial high court nominees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett (and helped get numerous other lower court judges appointed). As True North documented, Leo’s network played a central role in this right-wing court packing, raising over $600 million from 2014 through the 2020 election. This dark money network has received more than $2 billion when accounting for Marble.
As *Politico* noted, “Campaign-style politics — and the generous paydays that go along with it — are now adjacent to the Supreme Court, the one U.S. institution that’s supposed to be immune to it.”
Leo’s ties to such efforts are not only recent. Last month, the Washington Post revealed that in2012 Leo had been instructing Kellyanne Conway, who ran the Polling Company, to bill the Judicial Education Project (now known as the 85 Fund and the Honest Elections Project) to pay Ginni Thomas up to $100,000.She is the wife of Supreme Court Justice Clarence Thomas.That is, Leo was secretly orchestrating the pay of the wife of a Supreme Court Justice, Clarence Thomas, from a secret funder. That funder’s identity remains hidden. That year, the Judicial Education Project also paid CRC $165,000. CRC later acquired the Polling Company in 2017, with the help of another Leo group, as Politico revealed late last year.
Leo’s income from his for-profit operations or any consulting, such as CRC Advisors, is not required to be publicly disclosed.
The new filing that Accountable.US obtained provides vital insights into how Leo is using the billion that Seid gave him and also provides new information about the shape of his efforts to remake our courts and our country to advance his view of the world.
“This is just the latest development in Leonard Leo’s decades-long scheme to push his dangerous, extreme agenda and get rich while doing it,” Herrig told Truthout. “From personal enrichment for himself and his inner circle to his machine of nonprofits advancing the MAGA agenda, we’ve only scratched the surface of Leo’s devastating impact on our democracy.”
Note: Lisa Graves, True North’s executive director, contributed to this piece. A correction was made post-publication to correct a typo in a date (changing “May 1, 2020” to “May 1, 2021).
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an 8 23
leonard Leo, the co-chair of the conservative Federalist Society's board of directors, may not be a household name. But the fifty-eight-year-old lobbyist holds significant sway over Republican Party politics. For instance, The Guardian's Ed Pilkington recalls on Wednesday, all three associate justices who thrice-indicted former President Donald Trump nominated to the United States Supreme Court were names recommended by Leo.
According to Pilkington, Leo has also marketed himself as a defender of the First Amendment. But Pilkington points out that "a couple of eye-catching, and seemingly incongruous, events have led to speculation that his commitment to free speech might be more complicated than he professes, and more self-serving.If all American citizens are equal in front of this vital element of the US Constitution, could it be that some people – notably Leo himself – are more equal than others?"
Pilkington alludes to two instances that he says are evidence of Leo's "duality" regarding individual freedom of expression.
"The first of the two events took place in the bailiwick of the Bangor Daily News, in Maine, where Leo has a $3m waterfront estate on an elite island community in Northeast Harbor. On 20 July, Jane Mayer of the New Yorkerreported on a new lawsuit that had been brought by a 23-year-old local resident for wrongful arrest," Pilkington writes. "Eli Durand-McDonnell, a landscaper, was part of a group of progressive activists who staged a series of peaceful protests outside Leo's home. They were angry about his role in securing a rightwing supermajority on the US supreme court, and the evisceration of fundamental rights that flowed from that."
Although "Leo isn't named as a defendant in the civil lawsuit, which accuses two local police officers of making an illegal and retaliatory arrest of Durand-McDonnell during one of the protests on 31 July 2022, a month after the devastating abortion ruling," Pilkington continues, "it does claim that the arrest was made 'at the direct behest of Leo, a powerful and wealthy conservative political activist who has used millions of dollars as political speech to influence American politics and courts.'"
Event number two "burst into public view five days after :{Mayer's**New Yorker**}:article. On 25 July, Leo wrote a letter through his lawyer to two leading Democratic US senators on the judiciary committee, Dick Durbin and Sheldon Whitehouse,"Pilkington explains. "The senators wanted Leo to answer a series of questions about his ties to the Supreme Court justices as part of an ethics investigation they were conducting. Leo has long been a figure of interest for Congress, given his outsized influence on US politics and the courts."
Leo's attorney, however, argued that their client "is entitled by the First Amendment to engage in public advocacy, associate with others who share his views, and express opinions on important matters of public concern,'" Pilkington says, adding, "Leo declined to cooperate with Congress
lnk to pilk}}
LTR 8 PP RIVKIN
https://www.documentcloud.org/documents/23886791-leonard-leo-letter
ggl newa 7 23
Samuel Alito, the Supreme Court's Plain-Spoken Defender
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3 days ago — Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel's ...
Gun Control and the Constitution
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Feb 10, 2013 — Rivkin and Grossman practice law in the Washington, D.C., office of BakerHostetler. Mr. Rivkin served in the Justice Department and the ...
Rivkin and Casey: The Myth of Government Default
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David B. Rivkin Jr. and Elizabeth Price Foley: The Case for ...
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Rivkin and Casey: A Triumph and Tragedy for the Law
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Jun 29, 2012 — Rivkin and Casey are lawyers in the Washington, D.C., office of Baker & Hostetler LLP. They pioneered the constitutional arguments against ...
The Trump Warrant Had No Legal Basis
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Aug 22, 2022 — Rivkin and Casey practice appellate and constitutional law in Washington. They served at the Justice Department and the White House ...
David Rivkin and Lee Casey: The President vs. the Senate
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Jan 2, 2014 — Rivkin and Casey, partners in the Washington, D.C., office of Baker & Hostetler LLP, have filed an amicus brief with the Supreme Court, ...
David Rivkin and Lee Casey:Federalism and the Toxic ...
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Rivkin and Casey served in the Justice Department during the Reagan and George H.W. Bush administrations.
Rivkin and Casey: The True Lesson of the IRS Scandal
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Aug 22, 2013 — The government's abuses are very real, but the scandal's lessons are not appreciated: The federal regulation of political speech has already ...
The Legal Basis for the Trump Warrant and Mar-a-Lago ...
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Aug 30, 2022 — Rivkin and Casey are wrong on the law. They argue that the three statutes cited in the search warrant are general in nature, and are in effect ...
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climate denial roundup
https://www.dailykos.com/stories/2022/7/12/2109866/-Given-an-Inch-by-SCOTUS-Deniers-Take-a-Mile-to-Use-WVa-v-EPA-to-Deconstruct-Administrative-State
Well we took a week off, but we're still not done being mad about the minoritarian justices on the Supreme Court giving polluters a free pass in the West Virginia v. EPA case.
:{Though there was some relief in that it doesn't directly say the EPA can't do anything about climate change, the reality is that by bringing the "major questions doctrine" out of polluter wishlists and into to the Court's majority opinions, it may be even more underhandedly devastating than what a straight reading of the supposedly "narrow" ruling would suggest. But EPA authority on carbon pollution }
.
- scOTUS has just handed polluters the argument they need:{ to strike down wide swaths of federal regulations. The only exception would be regulations Congress specifically calls for, but even then courts can, and likely will, use the "major questions" excuse to say that whatever the Executive branch did wasn't actually what Congress delineated. And that's assuming that Congress is ever capable of passing real legislation addressing climate pollution — hard to envision currently given that polluters have used campaign contributions to purchase the GOP and Supreme Court. }::{Are we sure 'purchase' is the right word, given that }:[we still don't know:{ the financial instrument used to pay off Brett Kavanaugh's credit card debt? }::{– Ed.]}:
Pollution profiteers know they've won. You can see it in their reactions. At the Koch-funded Daily Caller, coal/tobacco lawyer Steve Milloy crowed that"it’s hard to see how any EPA regulation of greenhouse gases is legal since Congress never authorized such regulation."
Normally, Steve Milloy is the type of person that you should believe the exact opposite of what he says, given that his career has been to defend tobacco and fossil fuels. In years prior, if he said a SCOTUS ruling meant no more EPA regulations, smart money would be on the opposite.
So we include that quote not because we think Milloy has abandoned polluter propaganda and is suddenly telling the truth. Instead, we draw your attention to it because while it is polluter propaganda, unfortunately we now have a Supreme Court that turns polluter propaganda into precedent. But when the Supreme Court lies about "major questions" in the same way polluters have funded lawyers to cook up over the years, it's not a lie, it's a doctrine.
On the Wall Street Journal's opinion page, long home to polluter propaganda, two lawyers representing people who profit off of a product that's destroying the planet's ability to sustain human civilization lay out the game plan going forward: **no more deference to the administrative state**.
"West Virginia and the major questions doctrine are certain to surface again soon," write David Rivkin and Mark DeLaquil, pointing to "the Securities and Exchange Commission’s proposed climate-change disclosure regulations" theFTC's anti-monopoly moves and Title IX regulations for public education. (See this WSJ editorial for another example of using this ruling to attack anything they don't like, in this case "Pete Buttigeig's Climate Toll Road.")
"Going forward," Rivkin and DeLaquil conclude, "the first question in any important case concerning agency power is whether Congress actually intended for the agency to be regulating at all, not whether agency attorneys were clever enough to find a vague statute to justify a new rule."
In other words, the first thing lawyers for polluters and profiteers are going to do when regulated is claim that Congress didn't intend for this, and whether they're right won't matter, because they'll already have purchased sufficient votes on the Hill to prevent legislation.
This Supreme Court has now been captured by the same far-right patriarchal white supremacist polluters that have thoroughly corrupted the Republican party. They're even using the same lawyers! A couple weeks before the Journal published David Rivkin'scelebration gutting the administrative state, it published David Rivkin celebration the overturning of Roe, with a piece headlined "Supreme Court Reclaims Its Legitimacy."
Let's hope one day that actually becomes true.
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off bs bowtie
experience
- David is thelead counsel for the 28 states that have challenged the constitutionality of the EPA's Clean Power Plan and has been representing them in this matter in the DC circuit and the Supreme Court.
- David is the lead counsel in the Section 1983 Civil Rights Action case brought against several Wisconsin state government officials who were alleged to have initiated a sprawling John Doe investigation directed solely at conservative and right-of-center policy advocacy groups in the state.
- As part of BakerHostetler's role as court-appointed counsel to the Securities Investor Protection Act (SIPA)Trustee for the liquidation of Bernard L. MadoffInvestment Securities LLC, David is responsible for the appellate litigation in more than half a dozen Second Circuit and Supreme Court cases.
- David is a lead lawyer on a team that represents a former London-based JPM managing director whose cooperation was sought in the investigation related to a multibillion-dollar trading loss for the bank. Through aggressive defense of the former managing director and utilizing skills honed during involvement in investigating complex financial frauds, David and the team secured a rare non-prosecution agreement with the Justice Department and agreements with other regulatory authorities, which enabled the client to cooperate with federal prosecutors in the continuing investigations.
- Through arguments before the district courts, Fourth Circuit and Seventh Circuit Courts of Appeals, David successfully defended several Bivens actions brought against former Secretary of Defense Donald H. Rumsfeld.
- With considerable experience in litigation involving national security-related matters, David represented Senators McCain, Graham and Ayotte in the Second Circuit case, Hedges, which entailed a challenge to the constitutionality of the military detention-related provisions contained in the National Defense Authorization Act.
- When 26 states challenged the constitutionality of Medicare revisions under the Patient Protection and Affordable Care Act and argued that an individual mandate was beyond the powers granted to Congress under the Commerce Clause and the Necessary and Proper Clause, David represented the states and was lead outside counsel in the District Court and Court of Appeals. The United States District Court for the Northern District of Florida ruled in favor of the states at the case’s outset, with David handling both the briefing and oral arguments. The government appealed the case to the Eleventh Circuit, where David continued his involvement and the original decision was affirmed.
- David represented the Republic of Croatia before the International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice for a number of years on a wide range of issues involving international humanitarian law and the laws of war. He was Croatia's lead lawyer in both venues and handled numerous rounds of briefings and oral arguments.
- David has represented corporations in alien tort statute and civil RICO litigation, as well as in challenges to federal agency actions and constitutional challenges to state statutes. He also represented the State of Texas in the U.S. Court of Appeals, D.C. Circuit, during a challenge to several of the EPA's rules that sought to regulate greenhouse gases under the Clean Air Act.
- David handled the development and implementation of President George H.W. Bush's deregulatory initiatives, which entailed the review of all existing federal regulatory strictures and the application of a more rigorous, cost-effective standard to new regulations. His substantive areas of responsibility included international sanctions, energy, environment and tax issues.
- David played a leading role in the development of FERC Order 636, which introduced major changes to the regulation of the interstate natural gas pipelines,and simultaneously served as the Special Assistant for Domestic Policy to then Vice President Dan Quayle.
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2013 argument: slapp? https://s3.amazonaws.com/ucs-documents/science-and-democracy/MannvNationalReviewCEI.pdf
vs cozen o'c:
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On Appeal from the Superior Court of the District of Columbia, Civil Division, No. 2012 CA 008263 B (The Honorable Natalia Combs Greene & Frederick Weisberg)
INTRODUCTION Michael Mann gets the First Amendment’s protection of free speech precisely backwards. Mann claims the right to slur individuals and groups who disagree with him as engaging in “fraudulent” work, as publishing “bogus” research, as “hired assassin[s],” as “deniers,” as “shills for the fossil fuel industry,” as “deeply unethical,” and as perpetuators of a “crime against humanity.” See CEI Br. at 29–30. But faced with criticism of his own views, Mann claims that government agencies decided the matter once and for all in his favor and that any dissent is therefore false and defamatory. Our traditions and law reject that premise in favor of the “bedrock First Amendment principle…that citizens have a right to voice dissent from government policies.”
Tobey v. Jones, 706 F.3d 379, 391 (4th Cir. 2013). That principle is not only central to our democracy, but also to scientific progress, which depends on those willing to challenge prevailing wisdom in the never-ending search for truth. A government report, or even a stack of them, does not and cannot mean that a matter of scientific dispute and public debate has been conclusively “put to rest.” Mann Br. at 18. That Mann considers this debate illegitimate and an obstacle to implementing his favored policies does not undermine that conclusion—quite the opposite. Mann’s suitshould be dismissed because the statements he challenges are protected expressions of opinion as a matter of law. The principal defect in Mann’s reasoning is that he ignores language and context in favor of repetitious assertions that the Think Tank Defendants accused him of some unspecified “fraud”—a word that appears 116 times in Mann’s brief and zero times in Simberg’s blog post. But in the context of Simberg’s commentary, it is apparent that the statements Mann challenges are expressions of opinion critical of his research and behavior and of Penn State, not accusations of some unspecified act of fraud. And in the context of the heated global-warming debate, the statements of which Mann complains are actually quite temperate. Mann’s own statements show that Simberg’s commentary is typical of that debate. ...
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free sp in sci bs:
big in CEI slapdown of walker; Baker Host,pal of rivkin, pow
lost mann defamation suit nat rev.
bs no names, the eds
a few days before launching his lawsuit against what he called “this filthy organization,” Michael Mann wrote that there “is a possibility that I can ruin National Review.” Nearly a decade later, we are still fighting his attempt to do precisely that.
From the beginning of this affair, National Review has maintained that the case that Mann filed is frivolous, malicious, corrupt, and lacking entirely in legal justification. We maintain that still. The Supreme Court has ruled that the First Amendment is predicated upon “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” and that matters of political dispute are in consequence exempt from superintendence. By attempting to litigate against his critics, Michael Mann has chosen to stand firmly on the other side of that national commitment. Were he to prevail, he would set a host of terrible precedents against free inquiry and open argument, and in favor of censorship.
That this case has been open-and-shut from the start was obvious not only to National Review, but to all who believe in the freedom of speech and the freedom of the press — which is why the amicus briefs that have been filed in our behalf range so widely across the political spectrum.[note none listed]
We’ve said we’d use every tool and argument at our disposal to defeat Mann, and that’s what we’ve done. Mark Steyn posted the blog item in dispute in July of 2012. Mann sued in October of that year, and we filed our first motion to dismiss in December of 2012.
When that was denied by the trial court, we filed a motion to reconsider. When that, too, was denied, we appealed to the D.C. Court of Appeals — twice.This brings us to 2014. After oral arguments, the Court of Appeals sat on the case for two years. Then, the court denied our appeal. This was in December of 2016. Because the opinion had myriad obvious flaws, we petitioned for a rehearing. Incredibly enough, the court then delayed for yet another two years. When the court finally issued an amended opinion, all it did was add one footnote and amend another.
Because the amended opinion didn’t fix any of the flaws of the original opinion, we petitioned for a rehearing yet again. This, too, was denied. Then, last May, we filed a cert petition before the U.S. Supreme Court.All indications are that the court seriously considered it, before denying the petition (with Justice Alito issuing a strong dissent).
Now, we are back in the trial court, with expensive and time-consuming discovery underway.
Mann’s plan to “ruin” us, as he put it in an email produced under discovery, is plainly to get to a trial with a politically sympathetic D.C. juryand hope that the finer points of the law and the First Amendment are lost. (Short of that, he is surely happy for the case to drag out further, draining us of energy and resources.)
But it’s clear that the case should never get to that point — hence our latest motion. Under the First Amendment, Mann has to prove that National Review published the Corner post with “actual malice.” That would require him to show that National Review actually believed that the post was “false” (or likely false) at the time of publication. That is absurd for a number of reasons, including — given the nature of The Corner — we didn’t even know about the post until after it was published. The case against National Review is thus nonsensical at its core. It is also barred by a federal statute, Section 230 of the Communications Decency Act, which protects online publishers for hosting content posted by outside contributors.
To be clear, the content of the post itself is also plainly protected First Amendment speech, as we have argued consistently and at length from the first letter our lawyers wrote in response to Mann’s initial legal threat to our brief before the Supreme Court.
It is a matter of considerable irony that the only “malice” that the discovery process has uncovered is that exhibited by Michael Mann. When planning his suit, Mann described National Review as a “threat to our children,” beholden to “greedy fat cat corporate masters.” His stated intention was to bring us “down for good.” Needless to say, this is not how a country with a First Amendment or a culture of free speech is supposed to work. It’s past time that this suit is dismissed as incompatible with both, and a failure on the facts and the law. So far, the courts have, to quote Churchill, elected to “go on in strange paradox, decided only to be undecided, resolved to be irresolute, adamant for drift, solid for fluidity, all-powerful to be impotent.” They brushed past the anti-SLAPP statute that was designed to prevent this from happening. Our hope is that the same won’t happen with Section 230, which is also meant to protect the free-speech rights of online publishers.
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WASHINGTON, D.C. — Child labor laws hurt children. Social Security is an anchor dragging down economic growth, and Medicare should be abolished.
Those are the lessons I learn in a room full of conservative lawyers snacking on lamb sausage and Gorgonzola fondue — a room that’s absolutely packed with top practitioners, right-wing intellectuals and judges. I walked into the room alongside aTexas Supreme Court justice. When I reach to ladle some of the fondue onto a plate full of croutons, my hand accidentally brushes the arm of a federal court of appeals judge.
My sparring partner during much of this closing reception for the Federalist Society’s annual lawyer’s convention, is Ilya Somin, who is a law professor and writer for the Volokh Conspiracy, a popular legal blog that thousands of lawyers, law clerks and judges read every day. As Ilya lays out Social Security’s supposed vices, I wonder if his readers are aware of the breadth of his agenda. I also chide him that voters would have an easy time making up their minds if Republicans campaigned openly on promises toabolish child labor laws and kill Medicare, but he is completely unapologetic for his beliefs. This is not a man who pretends to care about the poor and the middle class in order to sell policies that will lower his own taxes. I leave the reception convinced that he sincerely believes that America’s poor would be better off if they only embraced his vision for a libertarian utopia.
Ilya’s views are not universal, but they are hardly unusual at this gathering of what is arguably the most powerful legal organization in the country. President George W. Bush raided the Federalist Society’s membership to fill the courts with judges who shared his conservative outlook. The convention’s program boasts 15 federal appeals court judges who schlepped to the Mayflower Hotel in Washington, D.C. just to moderate a panel. The annual black tie dinner features Justice Clarence Thomas — another person who believes that federal child labor laws are unconstitutional — as the evening’s main event. And Justices Antonin Scalia and Samuel Alito are in the audience despite the fact that they don’t even have a speaking slot at the convention this year. The judges and justices gathered in Washington are not there because they crave the spotlight or because they are doing someone a favor. They are there because the many men and somewhat fewer women who make up the Federalist Society are their people.
Everyone likes to spend time with friends.
Indeed, for many attendees, their annual pilgrimage to Washington for the Federalist Society convention is an opportunity to reconnect with people they’ve known since the Society was formed three decades ago.Some of the most eminent members of the Society were present close to its founding. Justice Scalia was one of the Federalist Society’s first faculty advisers when he was a professor at the University of Chicago.
The single most important fact to understand about the Federalist Society — indeed, about the conservative legal movement in general — is that it once viewed the Supreme Court as its greatest enemy, but the Roberts Court is now the best friend it has in the American government.
Throughout this thirty year history they’ve experienced the highs of the Reagan Revolution and the lows of slowly realizing that George W. Bush was a failed president. They’ve stood together against Roe v. Wade and they’ve stood just as resolutely against Obamacare. But, most importantly, they’ve seen the judiciary reshaped in their image. The single most important fact to understand about the Federalist Society — indeed, about the conservative legal movement in general — is that it once viewed the Supreme Court as its greatest enemy, but the Roberts Court is now the best friend it has in the American government
Cases like Roe are part of the past. Citizens United and the Shelby County case, which gutted the Voting Rights Act, are the wave of the future. After decades of advocating for “judicial restraint,” the lawyers gathered at the Mayflower Hotel have now experienced the ecstasy of watching five men write conservative values directly into the Constitution. And they want to feel that sensation again. And again. And again.
The Moderate Rand Paul
This transformation from a group of lawyers patiently tying their fortunes to Republican electoral victories into activists craving a victory by any means is apparent from the convention’s speaker lineup. In 2007, the Federalist Society demonstrated its clout by hosting the sitting President George W. Bush. One year earlier the convention featured Vice President**Dick Cheney**. Both speeches demonstrated the Federalists’ positioning as an organization well within the GOP’s mainstream. Here was an organization so widely respected by Republicans that it could draw the party’s top two leaders.
This year, however, the only federal lawmakers featured at the convention were Sens. Mike Lee (R-UT) and Ted Cruz (R-TX)— and this is the second year in a row when Lee and Cruz were the only Members of Congress on the convention’s program. At a time when mainline Republicans are very much in a struggle with Tea Party insurgents for control of the GOP, the Federalist Society casts its lot with the two men most responsible for shutting down the government for half of October.
When I share this observation with one of the conference attendees who sat down next to me at the convention’s Saturday luncheon, he agrees with me that Cruz and Lee are divisive figures and even suggests that many of the other people in the room are uneasy about these two senators. Though, when I press him to explain, he quickly confirms that any disagreement with Cruz and Lee is tactical, not substantive. “We like to win,” he tells me, and the two men behind a failed effort to defund Obamacare did not deliver that all-important victory.
He also refers me to a recent New York Times piece contrasting the uncompromising Cruz with Sen. Rand Paul (R-KY), a Tea Party senator who’s making friends with establishment figures and working to reelect Senate Minority Leader Mitch McConnell (R-KY). My dining companion does not hesitate to answer “yes,” when I ask him if he prefers Paul’s approach to Cruz’s.
The Federalist Society convention may be one of the few places on the planet where Rand Paul is praised for a moderate and restrained approach to politics.
The Federalist Society convention may be one of the few places on the planet where Rand Paul is praised for a moderate and restrained approach to politics. As a senate candidate, Paul came out against the federal ban on whites-only lunch counters — claiming that permitting private businesses to discriminate on the basis of race is the “hard part about believing in freedom.”More recently, Paul praised an infamous Supreme Court decision namedLochnerv. New York which gave employers a sweeping constitutional right to exploit their workers.
Lochner ensured that the courts would treat any law benefiting workers with great skepticism. It not only struck down a New York law preventing bakeries from overworking their employees, it formed the basis of later decisions depriving workers of a minimum wage and of the right to organize. Lochner is frequently taught to law students as an example of how judges should never, ever behave. Until recently, Lochner’s position in the constitutional anti-canon was unquestioned even among the hardline conservatives who form the backbone of the Federalist Society. The late Robert Bork, a failed Supreme Court nominee who is still spoken off as a fallen martyr in Federalist Society circles, called Lochner an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”
Damn, It Feels Good To Be A Gangsta
At the Mayflower Hotel, however, many of the guests are downright giddy at the notion of judicial usurpation of power. The Saturday luncheon’s program is a debate between federal appellate Judge J. Harvie Wilkinson and Georgetown law Professor Randy Barnett, with Barnett arguing in favor of the position “Resolved: Courts are Too Deferential to the Legislature.”
As an objective matter, Barnett is not a very successful Supreme Court advocate. He is best known for failing to convince the Court to shrink the federal government’s authority when he argued a case known as *Gonzales v. Raich*, and then for his work as one of the lead advocates behind the failed effort to convince the justices to repeal Obamacare. Yet his fellow Federalist Society members treat him as if he’s a conquering hero. In the convention’s hallways, he’s surrounded by leading practitioners, academics and even judges eager to share his wisdom. At one point, a young woman approaches him simply to say that she wants to “thank him for his eloquence.” If the Federalist Society played walk up music when its speakers took the stage, Barnett’s theme song would be 
”.
Though most of Barnett’s arguments rest on vague rhetoric such as “judges must follow the law,” he does offer one specific example of what he thinks judges should be doing that they currently are not. In a unanimous 1955 decision called *Williamson v. Lee Optical*, the Supreme Court upheld an Oklahoma law providing that no one could fit lenses into an eyeglass frame unless they did so “upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist.” Thus, just as pharmacists cannot simply hand out prescription drugs without authorization from a physician, the Oklahoma law applied a similar rule to merchants who grind lenses for eyeglasses.
More broadly, Lee Optical stands for the proposition that elected officials who are accountable to the voters — and not unelected judges with life tenure — should decide how businesses are regulated in the United States. As Justice William Douglas explained in the Court’s opinion, “[t]he day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.” Douglas understood that, when a lawmaker supports a law which is unwise or unworkable, the voters can correct the situation by voting that official out of office. But if a judge decides to substitute their own views for those of the electorate, the people are left without recourse.
Barnett looks at Lee Optical, however, and sees something very sinister behind the Supreme Court’s deference to democratically elected officials. The Oklahoma eyeglass law, he tells the Federalist Society, had nothing to do with protecting the health of people who wear glasses. Instead, he claims, state lawmakers enacted this law because the powerful eye doctor lobby prevailed upon the Oklahoma legislature to do so. It is this kind of “rent seeking legislation,” in Barnett’s mind, that the courts have a duty to strike down.
Lest there be any doubt, Barnett is concerned with far more than the price of eyeglasses in Oklahoma. In a 2012 speech at thelibertarian George Mason School of Law,Barnett laid out his theory of *Lee Optical* in much greater detail, and he openly admits that he would go much further than simply overruling this one case — “I would prefer that courts adopt a ‘presumption of liberty’ of the sort the Court seemed to employ in Lochner.” Barnett is offering the promise of cheaper eyeglasses, but what he’s really after is a constitutional right to exploit workers.
Medicare taxes the healthy and the young to pay the salaries of doctors. Public schooling taxes the childless to pay members of teachers unions. Laws banning murder force professional hitmen to give up their livelihood entirely!
Barnett’s narrative about Lee Optical taps into most Americans’ legitimate belief that lawmakers should not be doling out favors to interest groups. Yet it also ignores the far more compelling reason why courts do not second-guess economic regulation. Virtually every single law benefits some interest groups at the expense of others. Medicare taxes the healthy and the young to pay the salaries of doctors. Public schooling taxes the childless to pay members of teachers unions. Laws banning murder force professional hitmen to give up their livelihood entirely! If the mere fact that a law picks economic winners and losers — or even the fact that it came into being because a particular group lobbied for it — were a strike against that law’s constitutionality, then nearly all laws are suspect.
The reason why the courts abandoned the kind of inquiry Barnett proposes is that there is nothing in the Constitution that instructs judges on just how divorced a law’s effects must be from its ostensible purpose before the courts are empowered to strike the law down. And when judges divorce their own decisions from the Constitution’s text, there is nothing preventing them from imposing their views on the American people.
The Dying Breed
The task of defending this traditional argument for a limited judicial role falls to Judge Wilkinson, who offers some populist rhetoric of his own to explain why judges should not overstep their bounds — how would you feel, Wilkinson asks, “if one profession was calling all the shots for you?” Well, maybe the rest of the country doesn’t want to have all of the shots called by lifetime-appointed lawyers!
But it’s soon clear that, if the Federalist Society played walk up music for Judge Wilkinson, his theme song would be 
.” Wilkinson was once one of President Bush’s five finalists for the Supreme Court seat that ultimately went to Chief Justice Roberts, but he harbors no illusions that the Federalist Society’s winds still blow in his direction. Wilkinson demonstrates his commitment to judicial restraint by labeling Roberts decision upholding the Affordable Care Act a “courageous and correct” decision, but he pauses before he does so and invites the audience to boo him if they choose. Though a few isolated claps could be heard at the back of the room, the rest of the conference loudly accepts his invitation.
Indeed, even the moderator of this debate, arch-conservative Fifth Circuit Judge Jerry Smith, opens the discussion by suggesting that he prefers Barnett’s warmed-over Lochnerism to Wilkinson’s deference to democracy. Smith introduces Wilkinson by telling a story about when the two men met many years before — “I was a right-wing activist,” Smith jokes, and Wilkinson “was an establishment Republican.”
There are still a handful of judges like Wilkinson left — Republicans who still believe that Democratic officials should be free to govern if the American people choose to elect Democrats. Judge Jeffrey Sutton, who led one of the Federalist Society’s practice groups before his appointment to the bench, broke with his fellow Federalists and rejected an attack on the Affordable Care Act. Several months later Judge Laurence Silberman, a conservative who once received the Presidential Medal of Freedom from President George W. Bush, wrote an opinion holding that the legal attacks on health reform have no basis “in either the text of the Constitution or Supreme Court precedent.” But these two men were outliers in a judiciary where Republican judges rarely hesitated to deal a blow to Obamacare.
Both Sutton and Silberman were also noticeably absent from the Federalist Society’s convention.
Similarly, in 2004 the California Supreme Court included six Republicans and only one Democrat. Yet all but one of the court’s Republicans rejected a challenge to a California birth control law that’s strikingly similar to an Obama Administration rule that’s now under attack in the federal courts. The sole dissenter in that case was Justice Janice Rogers Brown, a severely conservative judge who once labeled the New Deal a “socialist revolution” and likened Social Security to cannibalism.
Nine years after Brown was a lonely voice crying out against California’s birth control law, her views on birth control are now shared by the overwhelming majority of Republican federal judges who’ve weighed in on the Obama Administration’s rules. One of those judges, thanks to a federal judicial appointment from President Bush, was Janice Rogers Brown.
Judges like Wilkinson, in other words, could soon become an endangered species. While few judges admit, as Brown does, that they would revive Lochner and fully embrace Randy Barnett’s vision, Republicans simply aren’t much interested in judicial restraint during the age of Obama.
The Failure of Richard Nixon
This embrace of Barnett over Wilkinson is a very recent development. In his 2007 address to the Federalist Society, President Bush labeled judicial activism a direct assault on the will of the people — “some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy, and it needs to stop.” At a 2006 debate with Justice Stephen Breyer co-sponsored by the Federalist Society, Justice Scalia warned that it is 
” for judges to read expansive new rights into the Constitution. In a 2006 address, then-Secretary of Homeland Security Michael Chertoff credited the Federalist Society for helping catapult the concept of judicial modesty into the legal mainstream — “in large part because of the work that the Society and others have done, the claim for judicial modesty is sufficiently well-established that everybody understands, even the critics of that claim, that they have to take it seriously and they have to address it.”
The fact that the Society was once a bastion of judicial restraint is easy to understand in light of the landscape at the time of its founding. The year 1982 was actually a rare moment of weakness for conservative lawyers. For most of the nation’s history, America’s judges stood with industrialists against their workers, with unreconstructed racists against African Americans, and with the wealthy against nearly any effort to diminish their fortunes. The Supreme Court gave its blessing to a nationwide sugar monopoly. It declared the income tax unconstitutional. And it gave every federal judge in the country sweeping power to act as union busters. One year later, it embraced the noxious doctrine of separate but equal.
In the coming decades, the justices held child labor laws unconstitutional. They gave employers sweeping rights to exploit their workers. And they spent President Franklin Roosevelt’s first term aggressively trying to frustrate the New Deal. As one of the era’s most influential legal scholars explained, “the conservative classes stand in constant fear of the advent of an absolutism more tyrannical and more unreasoning than any before experienced by man — the absolutism of a democratic majority.” And the United States Supreme Court was more than happy to protect these “conservative classes” from democracy.
Though Roosevelt eventually filled the Court with justices less hostile to self-governance, there was little unifying principle animating his nominees beyond a willingness to permit elected officials to govern. His nominees included civil libertarians, bigots, liberal activists and judicial minimalists. They also included some very fortunate surprises. Justice James Byrnes, who once claimed that lynching is necessary “in order to hold in check the Negro in the south,” quit the Court just over a year after his appointment. Justice Hugo Black, who once belonged to the Ku Klux Klan, emerged as an unexpected defender of civil rights for African Americans. Though Roosevelt’s justices took the law in a much more progressive direction then their predecessors, they accomplished this goal largely by rejecting the kind of activism that animated Lochner. An inactive Court was a progressive Court, at least compared to its predecessors.
Indeed, the very idea that the judiciary could actively push the law in a more liberal direction was virtually unheard of before Chief Justice Earl Warren donned his black robe in 1953. Warren’s tenure, which ushered in modern free speech doctrine, acknowledged the Constitution’s promise of “one person, one vote,” struck a law banning birth control and began with the Court’s celebrated decision in Brown v. Board of Education, was the first time in American history that the Court consistently embraced the Constitution as a progressive document.
By 1968, conservatives resented the Warren Court’s liberalism just as intensely as Roosevelt resented the justices’ previous efforts to impose laissez-faire Social Darwinism upon the rest of the nation. President Richard Nixon campaigned on a promise to appoint “strict constructionists” to the bench and then replaced nearly half of the Court’s members, but Nixon did not even attempt to revive the conservative activism that dominated the Court for much of its history. Indeed, liberalism continued to chalk up big wins even after Nixon’s four appointees were firmly ensconced on the bench. These nominees did provide the votes to impose strict limits on public school desegregation and to declare that poor children do not have a right to the same educational resources as rich children, but three of Nixon’s four justices also joined the modern right’s most hated decision in *Roe v. Wade*. Indeed, Roe was authored by Justice Harry Blackmun, who would eventually abandon his earlier conservatism and become one of the most liberal members of the Court.
They backed a conservative president who campaigned on a promise to appoint conservative judges, and what that got them was legal abortion in all fifty states
For all of these reasons, it’s not hard to imagine the despair conservative lawyers felt when the Federalist Society was founded in 1982. They backed a conservative president who campaigned on a promise to appoint conservative judges, and what that got them was legal abortion in all fifty states.
Restoring Lochner was a pipe dream. What conservatives needed was a truce.
The Constitution in 2000
President Ronald Reagan’s pledge to appoint judges who support “judicial restraint” was that truce. Judicial restraint meant that judges would not question minimum wage laws or engage in union busting, but it also meant that they wouldn’t strike down abortion laws. Judicial restraint meant that a Republican president who won two consecutive landslide electoral victories could carry out this mandate without interference from the unelected branch. And judicial restraint appealed to an electorate who naturally believed that their judgment was superior to that of a few elite members of the legal profession. Meanwhile, the newborn Federalist Society provided Reagan with the evangelists he needed to carry this message to that profession.
Behind the scenes, Reagan’s Justice Department crafted a vision that was quite a bit more nuanced than The Gipper’s pleas for restraint. As Dawn Johnsen has explained, much of the ground work for many of the Rehnquist Court’s decisions from the 1990s and the early 2000s which restricted the federal government’s power to legislate are was laid by the Reagan Justice Department and by President Reagan’s approach to judicial nominees. Among other things, a series of Reagan Era Justice Department documents laid out the administration’s disagreement with many Supreme Court decisions and instructed the Department’s attorneys to advance legal arguments that would promote a conservative legal vision.
For the most part, however, the Rehnquist era’s decisions had a marginal impact on congressional power — at least compared to the sweeping conservative activism now advocated by people like Barnett and Brown. Two of the most widely discussed decisions, U.S. v. Lopez and U.S. v. Morrison, left largely untouched the federal government’s sweeping authority to regulate the national economy — though it did limit its ability to enact non-economic regulation. Others limited the ability of individuals to sue states that violate their civil rights. But nothing in either the Rehnquist Court’s decisions or in the Reagan Administration’s documents predicted the kind of activism now advocated by much of the Federalist Society’s membership. To the contrary, one of the most significant Reagan documents rejects the idea that judges can enforce rights that aren’t specifically mentioned in the Constitution — a position that renders *Lochner*an impossibility:
Where the Constitution does not specify the value to be preferred, there is no principled way for courts to discern and provide preferred treatment for such a value. Whether such a value should be accorded protection, and how much protection it ought to receive, are political matters, reserved by the Constitution to the democratic majorities in the states and the political branches of the federal government.
Nor did this this fear of a judicial overreach cease when Ronald Reagan left office. George W. Bush’s first Supreme Court nominee — Chief Justice Roberts — told the senators overseeing his confirmation hearing that he would “prefer to be known as a modest judge.” He also warned that when judges make policy judgments, “they lose their legitimacy.” Even Justice Alito, a man who’s since emerged as the Supreme Court’s most intelligent and most effective conservative partisan, gave a nod to judicial restraint during his hearing. “[I]f judges begin to go further and announce and decide questions that aren’t before them or issue opinions or statements about questions that aren’t before them,” he told the Senate Judiciary Committee, “what happens when you do that is that you magnify the chances of getting something wrong.”
Endless Possibilities
[W]hat’s the point of judicial restraint when you know the judges aren’t going to do much of anything that you disagree with in the first place?
Roberts and Alito may have spoken of restraint during their confirmation hearings, but their confirmations placed the Supreme Court in conservative hands and obviated the biggest reason why Republicans once craved a modest judiciary. America in the year 2013, with Obama firmly ensconced in the White House and conservatives just as firmly in control of the Supreme Court, was the mirror opposite of the world the Federalist Society’s founders perceived in 1982. And what’s the point of judicial restraint when you know the judges aren’t going to do much of anything that you disagree with in the first place?
Indeed, it is difficult to exaggerate just how radically the judicial landscape has changed since the days when Justice Scalia was an up-and-coming lawyer heading an office in the Nixon Justice Department. The Society wasn’t just founded not that long after Roe v. Wade, it also was born nine years after the Supreme Court came within a hair of equalizing some of the disparities between the rich and the poor. The plaintiffs in *San Antonio Independent School District v. Rodriguez* challenged Texas’ policy of tying part of local school district funding to local property taxes, a practice which ensures that wealthy areas will have better-funded schools than poorer districts simply because property in more affluent areas is worth more. The Court, by a 5–4 vote with all four of Nixon’s appointees in the majority, allowed this system to stand.
In his debate with Professor Barnett, Judge Wilkinson warned the gathered lawyers and judges that if they abandon judicial restraint today, they could open the floodgates to cases like Rodriguez — or even that judges could create entirely new entitlement programs. In the short term, however, this fear is hardly justified. So long as the Roberts Court’s current majority sits, it’s impossible to imagine the Supreme Court revisiting Rodriguez. Or expanding Roe. Or doing much of anything that would move the law in a progressive direction that doesn’t involve the rights of gay people — one of the few areas where so-called swing Justice Anthony Kennedy actually votes like a moderate. Conservatives have little to fear from judicial activism in 2013, so they have little incentive to maintain the truce President Reagan once sought.
Just as importantly, it’s difficult to exaggerate just how much the Obamacare litigation has changed constitutional lawyers’ impressions of what is now possible. When the lawsuit was filed, nearly every informed observer agreed with Judge Silberman that the lawsuit had no basis in constitutional text or Supreme Court precedent. Reagan’s former Solicitor General Charles Fried quipped that he would “eat a hat which I bought in Australia last month made of kangaroo skin” if the justices struck the law down.
Indeed, as Josh Blackman explains in his detailed history of the lawsuits challenging health reform, many of the lawyers closest to the litigation initially believed it was a weak case. David Rivkin, one of the leading trial attorneys challenging the law, admitted to Blackman that his “colleagues were privately skeptical” that Rivkin could win. Randy Barnett himself, after reading a pair of op-eds Rivkin co-authored laying out his legal case, concluded that “[i]f those were the best arguments that the law is unconstitutional, then I figured it must be constitutional.”
And yet this argument that was widely mocked by lawyers across the political spectrum came within one vote of capturing the Supreme Court. If that could happen, why not test the limits of how far these five conservative justices are willing to go?
The Spirit of Liberty
Barnett relies on what Wilkinson describes as the “very vaguest phrases of the Constitution” to support his libertarian vision. He primarily cites the Ninth Amendment, which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and the Fourteenth Amendment’s command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” as the provisions in the Constitution that require a judicial takeover of America’s economic policy. It’s easy to see why Judge Wilkinson would like a little more guidance from the Constitution’s text before he appoints himself overseer of the nation’s economy.
But the belief that judges should be cautious before claiming they’ve found the One True Way to read the Constitution is quite often dismissed at the Federalist Society’s convention. As is Wilkinson’s rejoinder to Barnett — that when the Constitution is uncertain it’s best to defer to people who can actually get voted out of office.
A Friday morning panel that also features Professor Barnett is moderated byfederal appellate Judge Edith Jones,who the Federalist Society staffer tasked with introducing the panel describes as a “longtime friend of the Federalist Society.” Jones is undoubtedly a good friend of the Federalists, but she’s also a fairly notorious figure among the remainder of the legal community. Jones once voted that a man could be executed despite the fact that his lawyer slept through much of his trial. The Houston Chronicle reported that she once advised workers claiming discrimination to “[t]ake a better second job instead of bringing suit.” And she once proposed increasing Texas’ rate of executions by eight to twelvefold.
She’s also under investigation for allegedly claiming that African-Americans and Hispanics are predisposed towards violent crime.
Towards the end of her Friday morning panel, Jones describes the Constitution as “one of the clearest, greatest documents in world history,” a description that earns her a round of applause from the audience. Yet, for all that her fellow Federalists approved of this statement, it is a ridiculous claim that casts a fair amount of doubt upon whether Judge Edith Jones has actually read the Constitution.
Few people question the Constitution’s greatness, and rightly so, but the document is absolutely riddled with ambiguity. What on earth are the “privileges or immunities of citizens of the United States?” What makes a search or seizure “unreasonable?” Which punishments are “cruel and unusual?” If the government wants to deny someone “liberty,” how much “process” is “due?” What is a “public use” of private property? How should the United States guarantee a “republican form of government?” What is the “general welfare of the United States?” Which laws are “necessary and proper” for carrying into effect Congress’ enumerated powers?
Many of these questions perplexed lawyers and public officials even before the Constitution was ratified, and judges, attorneys and scholars continue to struggle with them to this very day. And yet Edith Jones, a woman who believes that the constitutional right to an attorney does not include the right to have that attorney be awake, is certain that she knows exactly what the Constitution means.
Nearly seven decades ago, Judge Learned Hand offered a different assessment of how he should behave if he wishes to honor the framers’ commitment to freedom. “The spirit of liberty,” said Hand, “is the spirit which is not too sure that it is right.”
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no lnx
Room for Debate
A NEW YORK TIMES BLOG
The Memos: Torture Redefined
BY THE EDITORS APRIL 16, 2009
CIA secret memos A screen shot of page 2 of the Aug. 1, 2002, secret memo that details interrogation techniques used by the Central Intelligence Agency. To see the four memos released by the Justice Department on Thursday, go here.
Updated, Apr. 20, 10:55 a.m. | Douglas W. Kmiec, who was head of the Office of Legal Counsel under Presidents Ronald Reagan and George H.W. Bush, offers his view.
Updated, Apr. 17, 1:00 p.m. | Kenneth Anderson, a law professor at American University and a research fellow at the Hoover Institution joins our discussion.
Updated, Apr. 17, 9:20 a.m. | We’ve updated this forum with commentary from David B. Rivkin, a lawyer and former official in the administration of George H.W. Bush.
The Justice Department on Thursday released four detailed memos, issued by the Office of Legal Counsel between 2002 and 2005, describing and approving the use of harsh interrogation techniques by the Central Intelligence Agency. President Obama said that while these techniques “undermine our moral authority and do not make us safer,” the C.I.A. operatives who relied on the legal advice would not be subject to prosecution.
We’re asking several legal and national security experts for their reaction to these memos and whether they think President Obama’s call for moving on from this chapter is the right decision.
Douglas W. Kmiec, legal adviser in Reagan administration
David Cole, Georgetown University Law Center
Kori Schake, United States Military Academy
Michael Ratner, Center for Constitutional Rights
David B. Rivkin, lawyer
Kenneth Anderson, law professor, American University
Obama’s Realism
Douglas W. Kmiec
Douglas W. Kmiec is a law professor at Pepperdine University. He was a head of the Office of Legal Counsel under Presidents Ronald Reagan and George H.W. Bush.
President Barack Obama deserves great credit for releasing these memos, though except for the listing of tortures — and that is what they are — the tortuous reasoning that yielded these had already been known.
My sense is that in 2002, there was a confluence of genuine fear of a follow-on attack far more devastating than 9/11; a president ill-prepared for the threat with respect to intelligence in every sense of the word; and Justice Department personnel who were either too young to have perspective, too academic to have practical wisdom, or too political to be capable of judgment.
Many, I know, wish to prosecute for war crime, and perhaps Spain still will. I doubt given the mental requirements for criminal penalty such would be successful, and I admire President Obama, yet anew, for taking the political heat from his left perimeter for grasping the futility of such prosecution.
It would be worthwhile to have a Nuremberg-style citizen-conducted ethics inquiry.
That said, it would be worthwhile to have a Nuremberg-style citizen-conducted ethics inquiry in which all of the opinion writers — and the opinion demanders in the Pentagon and former White House — would be required to self-critique why the Nation they most assuredly would say they love is today embarrassed if not appalled by what was authorized. The point of the exercise would be “looking forward” as President Obama properly desires, but in a manner that would be reminded out of the protagonists own attempts at explanation, why we cannot forget, and in the course of it all, to ensure that those presently exercising power, or those to come after, do not self-delude themselves into thinking it could not involve them or repeat.
Macabre and Excruciating
David D. Cole
David Cole, a professor at Georgetown University Law Center, is the author, most recently, of “Justice At War: The Men and Ideas That Shaped America’s ‘War on Terror.'”
The four legal memos released by the Obama administration on Thursday confirm in excruciating detail that the Bush administration employed twisted and macabre legal reasoning to authorize the unspeakable – the torture and cruel, inhuman and degrading treatment of human beings.
The memos’ matter-of-fact clinical descriptions belie the harsh tactics to which they gave a green light. They set the C.I.A. loose to slam suspects’ heads into walls up to 30 times in a row, to deprive suspects of sleep for more than a week straight, to confine them to small dark boxes for hours at a time, to slap them repeatedly in the face and abdomen, and to suffocate them with water to induce the perception that they are drowning.
Mr. Obama’s refusal to hold accountable those responsible for the wrongs so evident from the memos is unacceptable.
A child would recognize these tactics as cruel and inhumane. The United States itself treated waterboarding as torture when the Japanese used it against our troops in World War II. Yet through pages and pages of dense legal reasoning, the Office of Legal Counsel lawyers somehow reach the conclusion that these tactics, even when employed in combination and over a 30-day period, are not torture, and not even cruel, inhuman, or degrading.
President Obama should be commended for releasing these memos. But his simultaneous assertion that he will not seek to hold accountable those responsible for the wrongs so evident on the memos’ face is unacceptable. The line C.I.A. agents are not, however, the most culpable. Rather, it is the lawyers and high-level government officials who set this scheme in motion and made it possible. These documents are irrefutable evidence that government officials, including lawyers employed in the Office of Legal Counsel, a Justice Department office meant to serve as the “constitutional conscience” of the Executive Branch, set out to manipulate the law to reach repugnant, illegal results that contravene the very ideals President Obama says must not be sacrificed.
It is not enough to say that when we have a president who does not believe in cruel and inhuman treatment and torture, the United States will not engage in such practices – while leaving open the possibility that if we again elect a president who does believe in such practices, they can be revived as a policy option. We must formally acknowledge that what was done was wrong, indeed criminal. At the very least, a credible independent investigation must be undertaken. The Convention Against Torture, which we have signed and ratified, demands nothing less wherever there is any evidence that persons within our jurisdiction inflicted cruel, inhuman, or degrading treatment on another human being. These memos are that evidence.
Prosecution Would Be Dangerous
Kori Schake
Kori Schake, a former national security adviser on defense issues to President George W. Bush, is a research fellow at the Hoover Institution and a professor of international security studies at the United States Military Academy at West Point, N.Y.
It seems to me that President Obama hit the balance about right in rejecting the use of those techniques and releasing the information, but acknowledging that the intelligence community was working on a very difficult problem and conducting the interrogations in good faith with the legal advice they were receiving.
What struck me most about the memos was that as late as August 2002, C.I.A. officials believed they were hearing “chatter” of the level and kind that proceeded the September 11th attacks. At that time, the country was still reeling from those attacks. The agency believed it had in custody enemies planning catastrophic terrorist attacks against our country and were urgently seeking information. The C.I.A. sought legal counsel and complied with the advice. Subjecting people to prosecution under those circumstances would be a dangerous politicization of difficult choices made by those serving our country.
Granting Immunity Makes Obama Complicit
Michael Ratner
Michael Ratner is president of the Center for Constitutional Rights and author of “The Prosecution of Donald Rumsfeld: A Prosecution by Book.”
Yes, it is good that President Obama ordered the release of four more of the torture memos issued by the Office of Legal Counsel during the Bush administration. The inhuman interrogation techniques those memos authorized which include waterboarding, walling (in which a person is slammed against a wall), confinement in a small box and sleep deprivation clearly constitute torture and other crimes under U.S. law. There is nothing abstract about the techniques: they are initially focused on one individual and even discuss his psychological weakness in language similar to the novel 1984 — although in this case, it’s bugs, not rats.
Since when did legal advice make torture into a lawful and permissible interrogation technique?
Yet President Obama goes out of his way to praise those who engaged in these unlawful practices and assures them they will not be prosecuted. In part, he asserts that the C.I.A. personnel were following, in good faith, legal advice. But since when did legal advice make torture into a lawful and permissible interrogation technique?
Torture is torture and all the legal window dressing in the world cannot hide its essence: the infliction of pain and suffering on human beings. If legal advice can protect torturers, no official anywhere can ever be prosecuted. Legal advice then becomes a get out-of-jail free card and will be employed by every petty dictatorship to protect its abusers.
In making the decision not to prosecute, President Obama is acting as jury, judge and prosecutor. It is not his decision to make. Whether or not to prosecute law breakers is not a political decision. Laws were broken and crimes were committed. If we are truly a nation of laws as he is fond of saying, a prosecutor needs to be appointed and the decisions regarding the guilt of those involved in the torture program should be decided in a court of law.
Prosecuting those involved in the torture program, particularly the officials who conceived, authorized and ordered the torture program is not “retribution” or “laying blame for the past” as President Obama says. It is about insuring that we will not again become a nation that employs in torture. The prohibition on torture should not be dependent on who is president or on the stroke of a pen. We prosecute those who break laws to deter lawbreaking. President Obama, by granting impunity to torturers, becomes complicit with their actions. History will not judge him kindly.
No Harm, No Torture
David B. Rivkin
David B. Rivkin, a lawyer in Washington, was counsel of the President’s Council on Competitiveness at the White House under George H.W. Bush.
The release of these memos comes at a high price. By describing in great detail the most assertive set of interrogation techniques, that the United States has ever used — having determined them after a great deal of reflection and analysis to be legal — we have rendered them essentially unusable in the future. This is precisely because these techniques were not torture, did not feature brute force and worked primarily because of their psychological dimension. Now, having been exposed, these techniques would be studied by our enemies, who will then train their operatives to withstand them.
However, while this disclosure came at a great price, it also provides a great benefit. The memos are well-written, and feature careful and nuanced legal analysis. They weave together the facts and the law. They are grounded in real world experience, because nine out of 10 techniques, used against high-value detainees, were also used over a period of many years in SERE training courses, with thousands and thousands of American participants.
This data is analyzed in great detail to establish that the use of these techniques does not inflict either physical or psychological damage. The conclusions the memos reach — that the specific interrogation techniques used by the C.I.A. did not constitute torture — are eminently reasonable. To any fair-minded observer, these documents definitively establish that the Bush administration did not engage in torture. They go a long way toward rebutting shrill and unfair attacks on the integrity of Bush administration officials, and, more generally, on America’s honor.
Congress Knew All Along...
===
4/15 huffpo
Walker’s Dark Money Allies Orchestrate Coup of the Courts
Two court cases next week — one being heard in open court, another being considered in silence behind closed doors — will decide the future of Wisconsin campaign finance law, the independence of the Wisconsin judiciary, and will impact the future of presidential candidate Scott Walker.
The stakes could not be higher, but the converging cases have garnered little national attention.
Walker Criminal Probe to Be “Heard” in Silence
The Wisconsin Supreme Court is slated to take up the “John Doe” criminal investigation of alleged coordination between Friends of Scott Walker and “independent” groups during the tumultuous 2011-2012 recall elections.
The Center for Media and Democracy (CMD) has detailed the bipartisan state investigation into the Walker campaign and the secretive big money groups that bankrolled his 2012 recall victory. Wisconsin Club for Growth (WiCFG), headed by Walker campaign manager R.J. Johnson and the “third Koch Brother” Eric O’Keefe, spent at least $9.1 million on Wisconsin’s unprecedented recall elections, and funneled almost $10 million more to other politically-active groups, including Wisconsin Manufacturers and Commerce. Yet, WiCFG, which enjoys tax free status, told the IRS that it spent $0 in political activity during that period.
Prosecutors allege that Walker secretly raised millions for WiCFG from out-of-state donors like Donald Trump and Paul Singer, and allegedly coordinated with WiCFG in order to evade Wisconsin’s donor disclosure laws.Talking points prepared for the governor advised him to “stress that donations to WiCFG are not disclosed,” and to tell donors “that you can accept corporate contributions and it is not reported.”
These dark money schemes left voters completely in the dark about who was truly influencing elections in the state, CMD argued in the *Milwaukee Journal Sentinel.* Wisconsinites never knew that aFlorida-based mining company lobbying for a massive open pit mine in Wisconsin secretly gave $700,000 to WiCFG,nor did they know that John Menard gave $1.5 million to the group, and in turn received at least $1.8 million in tax credits from Walker’s job development agency.
The investigation has been halted by a passel of lawyers hired by the groups under investigation and its fate now rests with Wisconsin’s Supreme Court.
In an unprecedented move, the court’s right-wing majority decided not to hear oral arguments in order to protect the defendants against leaks, over the strong objections of the Chief Justice.
While WiCFG leader Eric O’Keefe is constantly “partisan witch hunt” to the Wall Street Journaland even likened the investigation to being raped, the fact is that the chief prosecutor is the case is Francis Schmitz, a well-respected Republican anti-terrorism prosecutor who received the “U.S. Attorney General’s Award for Distinguished Service” from Michael Mukasey’s Justice Department in 2007. Schmitz even admitted to voting for Walker in the recall election.
Schmitz and his team took note that four of the right-wing justices were elected to office with huge expenditures by the very big money groups under investigation. He has demanded that these justices recusethemselves from the case, but the request has been ignored.
In “hearing” the John Doe, the Wisconsin Supreme Court will consider not only the future of the investigation and the fate of Walker, but also the future of Wisconsin campaign finance law, and whether candidates (including the justices themselves, when they are up for reelection) will be able to coordinate with dark money groups whose job it is raise and spend unlimited dollars from powerful special interests.
Wisconsin’s Common Cause director Jay Heck explained:
What is at stake here is the independence of the Wisconsin judiciary. The Wisconsin Supreme Court was once considered the model for the nation in terms of its impartiality and independence. That history could be wiped out by a single decision by this court to open up the doors to coordination with outside groups and effectively render campaign contribution limits meaningless.
Walker and Dark Money Allies Orchestrate Coup of the Courts
In a related case, Walker’s big money allies are busily engineering a coup of the courts tostrip the independent Chief Justice, Shirley Abrahamson, of her title and authority.[succeeded, she resigned]
Wisconsin elects Supreme Court Justices for 10 year terms. For 126 years under the Wisconsin’s Constitution, the title of Chief Justice has been given to the longest serving member, but sticking to that plan would leave critical thinkers in charge for decades to come. Abrahamson was reelected as Chief to a 10 year term in 2009 with 60% of the vote. After Abrahamson, Justice Anne Walsh Bradley, who has fought to keep partisan politics out of the courts, would be next in line.
As CMD previously reportedthe threat of having a Chief who was not under their thumb was simply too much for Team Walker and his dark money allies. The GOP controlled legislature urged on by WMC and the Koch-funded Americans for Prosperity backed a Constitutional Amendment to get rid of the Chief and rushed to get it on the low-turn out spring ballot.
As veteran Milwaukee journalist Bruce Murphy put it:
Proponents of the measure have said it’s about displacing seniority with democracy, but declined to make it effective in 2019, when Abrahamson’s term ends, leaving no doubt this was a get-Shirley amendment.” And let’s not forget the unseemly, undisclosed lobbying by other justices hoping to be Chief, including Pat “Patience” Roggensack.
To orchestrate a constitutional coup a phony “vote yes” group was formed by Rogensack’s former campaign manager and WMC piled on the cash in a $600,000 ad blitz saying it was all about “democracy.”In the final weekend before election day, the liberal Greater Milwaukee Committee fielded an extra $200,000 in ads, but it was too late to make a difference.
Perhaps if the WMC ads had explained that they were unseating the chief and purchasing the best court money could buy, the result may have been different. But it was no surprise when, as the *Capital Times*explained: “They secured a narrow53 percent to 47 percent victory in a low-turnout election; barely 10 percent of Wisconsin’s voting-age population supported the deliberately confusing amendment.” Court observers tracking the “We Hate Shirley”amendment assumed that she would soon lose her title and her authority.
But the feisty 81-year old Chief Justice is not taking the dark money onslaught lying down. She filed a federal lawsuit (documents here) brought by one of the nation’s most respected constitutional lawyers, Robert Peck of the Center for Constitutional Litigation,arguing that changing the rules concerning how a Chief is selected in the middle of her term violates the Equal Protection and Due Process rights of the chief herself and the voters who elected her under the U.S. Constitution.
While WMC lobbyists and right-wing politicians are fuming at this audacious move, respected constitutional scholar David Schwartz, Professor of Law at the University of Wisconsin had a different view.
Chief Judge Abrahamson’s decision to file a suit in federal court is a “sensible and appropriate way” to resolve a complicated question of how to interpret the new Wisconsin amendment which was silent on when it should take effect. “Changing the rules in the middle of the game violates fundamental fairness that is guaranteed by the Due Process Clause. It would violate both her rights and the rights of voters who elected her in the expectation that she would be Chief Justice,” Schwartz tells CMD. “Note that the Chief Justice’s suit challenges only the retroactive application of the law, and does not question the right of the people of Wisconsin to restructure its court system in general, or to change the rules for selecting a chief justice at the next vacancy of that position.”
In addition, Schwartz explained that “by suing in federal court, Chief Justice Abrahamson seeks a resolution by neutral judges who have no personal stake in the outcome of the case. Since the Wisconsin Supreme Court justices have a personal stake in the case, it would be problematic for them to try resolve the question themselves.”
Walker to Anoint Lawyers in the Abrahamson Challenge?
But the dark money men at the WiCFG are also not backing down. WiCFG director Eric O’Keefe is apparently so awash in money that he has teams of both state and federal attorneys “building a court they can bend to their will,” as judicial watcher Nan Aron from the Alliance for Justice put it.
Last year, O’Keefe hired federal lawyer **David Rivkin** to unleash a swarm of frivolous lawsuits related to the campaign finance probe. Rivkin, last spotted defending Bush’s torture memo in the New York Times, filed suit in federal court to try blocking the investigation. O’Keefe had someinitial success with a far-right judge who regularly attended Koch judicial junkets,but he was eventually slapped down by famed conservative jurist Frank Easterbrook on the 7th Circuit.
But O’Keefe, who funded infamous hatchet man James O’Keefe the year he took down a Republican State Senator standing in Walker’s way, is not done.
Last week, Rivkin went after the Chief Justice herself in a federal suit. In a bizarre twist, Rivkin’s suit cited newspaper articles describing an incident when Justice Prosser called the Chief “a bitch” and threatened to “destroy her” and another article when Prosser nearly choked Justice Bradley to somehow make the case that it was Abrahamson and not Prosser who was out of control. (He missed Prosser’s latest ethical stumble.)
Rivkin purported to represent Wisconsin voters who backed the constitutional amendment. But Milwaukee reporter Bruce Murphy quickly spotted the usual cast of characters, deeply tied to both Scott Walker and Eric O’Keefe. Eric O’Keefe is on the CRG [CFG?]Board, says Murphy. In 2014, Rivkin helped CRG file another lawsuit in U.S. District Court challenging the legality of state laws banning coordination between political candidates and dark money groups. CRG was last in the news working with the David Koch’s Americans for Prosperity group to stop — horrors! — a proposed trolley system in Milwaukee.
But Rivkin’s gambit to intervene in the Abrahamson case was wisely rebuffed by the federal judge James Peterson.
And in the latest odd twist to the case Milwaukee Journal Sentinelreported that counsel for the Supreme Court justices named in the Chief’s suit will be appointed by none other than Governor Scott Walker.
Abrahamson and her attorney should protest. While Walker might think he runs the courts, he doesn’t yet. If private counsel is needed by any judge it is the policy of the state courts that the Director of the State Courts appoint outside counsel, not the governor.
===
https://www.sourcewatch.org/index.php/Eric_O%27Keefe
...
Post-John Doe Dismantling of the Government Accountability Board, Threatened Retaliation Against Prosecutors
Immediately after a conflicted Wisconsin Supreme Court issued a 4-2 decision ending the John Doe investigation, O'Keefe began attacking the prosecutors who took part in the case and Wisconsin's non-partisan Government Accountability Board (GAB), which oversees elections. (A network of groups with ties to O'Keefe had previously successfully sued the GAB in 2014 to block enforcement of aggregate PAC limits.)[1]
In an interview with right-wing radio host Charlie Sykes the day after the court's decision, O'Keefe "said efforts were underway to ask Gov. Scott Walker to fire the prosecutor in charge of the case," according to the Milwaukee Journal Sentinel:
O'Keefe said there would also be attempts to disbar the attorneys involved in the investigation. He also asked the Legislature to assess the involvement of the Government Accountability Board in the John Doe proceedings.[2]
O'Keefe also called to eliminate the GAB, a goal that was quickly supported by Governor Scott Walker and prominent state Republicans, according to the Wisconsin State Journal:
"GAB was a bad idea whose time has gone," the group’s director, Eric O’Keefe, told radio host Charlie Sykes. "They need to eliminate it."[3]
In October, 2015 O'Keefe's WiCFG launched a robocall campaign in support of a newly-proposed bill to replace the GAB with a board of partisan appointees.[4][5] The calls included a recording of O'Keefe urging the wavering senators' constituents to demand the senators vote "yes" on the bill.
A trio of bills to deform the GAB, dismantle campaign finance limits, and to prohibit the John Doe process being used to investigate political corruption had been proposed in September 2015. In addition to WiCFG, the groups campaigning and/or lobbying in support of the various bills included David Koch's Americans for Prosperity and a new nonprofit created by former AFP staffer Lorri Pickens.[5] The bills passed, and were signed into law in December 2015.[6]
O'Keefe Lawyer Files Suit Against John Doe Prosecutors
Former Scott Walker aide Cindy Archer filed a civil suit in July 2015 against Milwaukee County DA John Chisholm and four other prosecutors, accusing them of rights violations during the John Doe investigation. Archer was represented by attorney David Rivkin of Washington, DC-based Baker and Hostetler LLP, who was also the attorney for O'Keefe and WCFG in lawsuits related to the John Doe case.[7]
The complaint claimed that the DA's office "conducted a continuous campaign of harassment and intimidation against individuals and organizations in retaliation for their association with Scott Walker and their support for his policies," as described by the Milwaukee Journal Sentinel.[7] Officials had seized documents from Archer's home in connection with the John Doe investigation. Archer, who was appointed to a $113,000-a-year position in the state public defender's office in 2014,[8] wrote in a Wall Street Journal opinion piece that her "reputation and career have been damaged beyond repair."[7]
Audio of John Doe Raid Contradicts Aide's Claims of Prosecutorial Abuse
Audio of the raid on Archer's home unsealed in connection with the lawsuit "tells a different story" than Archer's claims.[9] (O'Keefe has compared the targets of the investigation to rape victims, saying prosecutors "imposed a traumatic, unconstitutional abuse on people.") As described by the Milwaukee Journal Sentinel, the newly released audio
details tense but mannerly exchanges between Archer and Aaron Weiss, an investigator with the Milwaukee County District Attorney's Office, as he led a team of officers during an early morning raid on Archer's home as part of a now infamous John Doe probe."I'm sort of doing you a courtesy by letting you get a coffee and smoke a cigarette just because I imagine being woken up at six in the morning by a bunch of people in black suits is not the way you want to wake up in the day," Weiss said at one point."Thank you," Archer responds.[9]
The recording contradicts numerous claims made by Archer in her lawsuit, including that she did not have time to read the search warrant, that she did not know she had the right to a lawyer, and that the investigators "screamed at her" and forbid her from going outside to smoke a cigarette.[9][10] (Archer later amended her suit to "no longer [claim that] investigators questioned her during a raid of her Madison home without reading her Miranda rights," according to the Wisconsin State Journal.)[11] Many of these claims had been circulated in right-wing media spin about the case. See the related story on PR Watch here.
Criminal Investigation into Possible Illegal Campaign Coordination in Wisconsin (2012-2015)
...
===
https://www.publicintegrity.org/2003/01/06/3160/most-favored-corporation-enron-prevailed-federal-state-lobbying-efforts-49-times
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A most favored corporation: Enron prevailed in federal, state lobbying efforts 49 times
By M. Asif Ismail 7:00 pm, January 6, 2003 Updated: 12:19 pm, May 19,2014
Enron Corp., which ran a formidable lobbying machine in Washington and state capitals, gained favorable treatment from Congress, federal and state governments and various regulatory agencies on no fewer than 49 occasions from the late 1980s to the company's bankruptcy in December 2001, a Center for Public Integrity analysis shows.
It has been almost a year since Enron's financial collapse created a political scandal. The company and its employees were the largest donor to President George W. Bush over the course of his political career. Kenneth Lay, the company's CEO, had also made significant contributions to a political action committee of Attorney General John Ashcroft, first disclosed by the Center on January 9, 2002; Ashcroft recused himself from the Enron investigation within hours of the Center's report.
Enron's efforts to exert its influence began early in its history, the Center found. Its successful efforts to deregulate electricity and natural gas markets paved the way to its rise, and the exemptions it won from regulatory scrutiny may have contributed to its collapse. Lobbying was a critical component in both the company's rise and fall.
The six-month analysis was based on federal and state lobby disclosure reports, documents obtained under the federal Freedom of Information Act and its state-level counterparts, thousands of news accounts from the Lexis-Nexis and Dow Jones databases, and other sources. The Center identified hundreds of issues on which Enron lobbied over the course of more than a decade and then analyzed the legislative and regulatory actions that followed the lobbying efforts.
The fallen energy giant lobbied on diverse interests that ranged from gas marketing and regulation of the broadband communications network to rules on the use of corporate planes and the gift ban (which limits the value of gifts congressional and executive branch officials can accept). The long list of issues where it tried to shape or alter public policy includes the federal budget, environmental law including efforts to address global warming, the privatization of utilities at military bases, product liability reform, the Investment Company Act of 1940, and health care reform, to name a few.
To achieve its legislative goals, Enron employed multi-pronged strategies that included doling out campaign contributions to influential politicians, employing a nationwide network of lobbyists and building grassroots support for policy changes by bankrolling think tanks and other organizations that advocated those changes. On many issues, it either allied with other companies and trade associations or was part of umbrella coalitions.
When Enron won, it was often part of a coalition of companies all seeking the same policy changes, all of whom benefited (some more than Enron). Enron joined 29 coalitions of special interests, including Americans for Affordable Electricity, for which it reportedly supplied 75 percent of the funds, and the National Wetlands Coalition, which included Amoco, Arco, Exxon and other oil companies.
While most of Enron's lobbying efforts were directed at blocking government actions, the company also campaigned for federal subsidies and sought government assistance in doing business overseas.
The issues Enron successfully lobbied on include:
The 1992 Energy Policy Act, which amended the Public Utilities Holding Company Act (PUHCA) of 1935. The legislation paved the way for the initiative with which Enron has been most closely linked, deregulation. The act opened electricity transmission grids, which had been monopolized by utilities, to outside competitors. Enron, one of the main lobbyists for the legislation became the largest wholesale power marketer in the country in less than five years after the act's passage. In 1996, the Federal Energy Regulatory Commission (FERC) issued the open-access rule, which forced utilities to unbundle generation and transmission services. On the same day the commission also ruled to facilitate the states' restructuring of the electric industry and allowed retail customers to choose service providers.
In April 1992, FERC restructured interstate pipeline operations. The move, which deregulated much of the industry, allowed companies like Enron the right to buy, sell, or trade and transport gas.
In 1993, the Securities and Exchange Commission exempted Enron from provisions of the Public Utility Holding Company Act that banned utilities from investing in unrelated, risky businesses.
Enron lobbied the administration of then-Gov. George W. Bush and the Texas legislature successfully on four separate issues, including tort reform, corporate tax reductions, an industry-friendly environmental plan, and electrical deregulation.
In 1997, the SEC exempted Enron from the Investment Company Act of 1940 that prohibits U.S. companies from leaving debt from overseas projects off the books.
So far 23 states and the District of Columbia have taken steps toward deregulation. Some of these states passed restructuring legislation different from what Enron endorsed. The company had waged lobbying campaigns in most of the states.
The federal government extended the energy tax credit for wind-generated electrical power several times. Enron, which had a subsidiary that generated power from wind, was one of the main lobbyists for the extension of the credit.
The Commodity Futures Modernization Act, which Congress passed in 2000, had a provision that precluded the Commodity Futures Trading Commission (CFTC) from regulating Enron's trading in energy derivatives.
The study also found that Enron had unprecedented access to officials in all branches of government, both in Washington and in states.
The Center counted only various changes to rules-that is, the enactment of new legislation, the adoption of new regulations, or specific exemptions for Enron from regulations-in its analysis. Many of Enron's lobbying efforts were aimed at blocking policies. For example, along with hundreds of other companies, Enron lobbied against the health care reform legislation proposed by the Clinton administration in 1994. Though the legislation did not pass, the Center's analysis did not count this as a victory for Enron.
The company received financial backing to the tune of hundreds of millions of dollar for several of its foreign projects from agencies such as Export-Import Bank and Overseas Private Investment Corporation. Though Enron received millions of dollars in aid from OPIC and EXIM Bank, the Center did not include these grants when totaling the number of times Enron prevailed, since Enron merely took advantage of programs available to all corporations.
In the states, the Center's analysis counted the passage of any deregulation plan that allowed Enron to either enter a market or expand its presence in a market as a favor, even if the final deregulation plan was not the one Enron lobbied for.
From think tanks to power plants
The company was formed in 1985 when Houston Natural Gas and Internorth, two regional pipeline companies, merged. Kenneth Lay, who earned a Ph.D. in economics at the University of Houston and worked in the Interior Department and the Federal Energy Regulatory Commission in the Nixon administration, headed the new company, which struggled with a huge debt load in the tightly regulated world of natural gas markets. Under Lay's direction, the company rose to transport as much as 20 percent of the nation's natural gas, to become the largest wholesaler of electrical power, the seventh largest corporation-and, when it filed for Chapter 11 in December 2001, the nation's largest bankruptcy up to that time.
Central to Enron's growth (and its collapse) was the company's ability to influence federal policy. Even before Enron was formed, Lay had some success as a lobbyist. As president of Florida Gas Transmission in the mid-1970s, he pushed for natural gas deregulation. I went around the state and tried to educate all of the [Florida congressional] delegation on the importance of this battle, Lay told Forbes in an October 2002 interview. At the end of the day, I got all but two of them to cosponsor those deregulation bills.
The Natural Gas Policy Act of 1978 was the result, which only partially deregulated the market and pipelines for natural gas. It wasn't until 1993 that Enron and other companies secured complete deregulation.
Before Enron started promoting the nationwide restructuring of electricity industry, the notion of a free market for electricity was an academic issue discussed by university economists and think tank policy specialists who debated what constituted a natural monopoly. Enron made it into a political issue.
In a November 2001 article, Irwin M. Stelzer, the director of regulatory studies for the conservative Hudson Institute and a paid consultant for Enron, wrote, What Enron and Lay deserve to be remembered for is leading the fight for competition. This battle was waged in the halls of Congress, in state legislatures around the country, and in regulatory agencies on the federal, state, and local levels. It included efforts to loosen the stranglehold on electricity markets of incumbent utilities, who used their monopoly of transmission lines to beat back threats from independent generators.
Enron, which did not have any power generation capacity in its initial days, envisioned that once the market was restructured it could make millions by selling power using the transmission grids owned by giant utilities.
Thanks to sustained lobbying campaigns by the company and its allies, utility deregulation became a legislative priority on Capitol Hill for a decade. Although Enron did not achieve everything it wanted at the federal level, in the states it had more successes.
According to the Department of Energy, deregulation is currently active in 17 states and the District of Columbia, while 23 states and the District have either passed legislation or issued a regulatory order to implement retail access. All the states except Nebraska have considered restructuring at some point, according to Channele Carner, electric power industry specialist at the Department of Energy.
As recently as 2000, Enron had lobbyists in more than half the states. A Center study released in May 2002 found that Enron was registered to lobby in 28 states that year. Only 38 other entities had a lobbying presence in more states.
At the national level, the agency that bestowed the most favorable decisions on Enron was the Federal Energy Regulatory Commission, the organization tasked with overseeing the energy market. Many of the rulings that allowed Enron to expand businesses in natural gas as well as electricity were issued by FERC.
The open access rule, also known as FERC Order 888, and Order 636 which restructured the interstate gas pipeline regulations, went a long way in the growth of the company from a natural gas company into a global energy powerhouse.
Unlike many other advocates of deregulation, Enron wanted FERC to have more authority in a restructured market. Testifying before a House subcommittee, Enron lobbyist and former FERC Chief Elizabeth Moler said the commission should be given more authority.
The company was instrumental in the nomination of two commissioners in the early days of the Bush administration. It pushed the candidacies of Pat Wood, the chairman, and Nora Mead Brownell, who had taken a favorable position as a Pennsylvania regulator in 1997. When the latter's nomination was in trouble because of opposition from officials from her state, Lay called Karl Rove, according to a May 2001 Wall Street Journal report.
The White House confirmed that the names of Wood and Brownell were recommended by the Enron chief.
Earlier, Lay had lobbied Bush to make Wood the head of the Texas Public Utility Commission. And Wood, a former oil man, supported electricity deregulation during his tenure in Texas.
Before he lost the job, Curtis Hébert Jr., Bush's first nominee for the FERC chief's post, told The New York Times that Lay had offered a deal to save his position. Hébert told the paper in May 2001 that the Enron chief had asked the commissioner to change his views on deregulation if the chairman wanted the company's continued support in the job.
:{
}:
Lay confirmed having a conversation with Hébert but denied that he had made any quid pro quo demand.
Bush replaced Hébert with Wood in August 2001.
Lobbyists
A key part of Enron's strategy was having influential lobbyists in Washington and elsewhere. Besides maintaining a stable of high-profile lobbyists with a wealth of experience in government on its payroll, the company hired top lobby firms, with a history of getting things done.
Pulling strings on behalf of Enron were such well-connected firms as Akin, Gump, Straus, Hauer & Feld; Bond Donatelli; Bracewell and Patterson; Davis Wright Tremaine; Price Waterhouse Coopers;Sideview Partners; Skadden ArpsMeagher and Flom; Verner Liipfert Bernhard McPherson and Hand; Vinson & Elkins; and Quinn Gillespie.
Enron spent more than $5 million on lobbyists, both in-house and from outside firms, since 1997.
Former federal legislators who lobbied for or represented the company include Senator J. Bennett Johnston (D-La.), who chaired the Senate Committee on Energy and Natural Resources, Representative Mike Andrews, D-Texas, and Representative Ed Bethune, R-Ark.
Enron also hired a large number of officials who had previously served in the executive and legislative branches of government. Former Secretary of State James A. Baker III; former Commerce Secretary Robert Mosbacher; Brent Scowcroft, national security adviser to George Bush Sr.; Wendy Gramm, former chairman of the Commodity Futures Trading Commission and wife of Senator Phil Gramm, R-Texas; former Clinton treasury official Linda Robertson; former FERC Chief Elizabeth Moler; and Marc Racicot, chairman of the Republican National Committee and former governor of Montana, have all worked for the company as either lobbyists, consultants, or members of its board of directors. Enron also hired opinion makers-both Paul Krugman, the Princeton economist who writes an opinion column for theNew York Times, and Bill Kristol, the editor of the Rupert Murdoch-owned Weekly Standard, were paid for consulting work for the company.
At least three members of the Bush administration, Secretary of the Army Thomas White Jr., Bush economic adviser Lawrence B. Lindsey, who resigned Dec. 6, 2002, and Trade Representative Robert B. Zoellick, worked for Enron. Lindsey, while advising Bush on economic issues during the last presidential campaign, was also a consultant to Enron.
Coalitions
On several issues, Enron lobbied along with, or as part of, coalitions representing industries and trade groups. The Center counted nearly 30 such umbrella organizations that the company allied with.
On deregulation, the company coordinated its lobbying efforts with several groups at the state and federal level, including Americans for Affordable Electricity (AAE), a coalition of industry and consumer groups advocating restructuring, and the American Legislative Exchange Council, a group of conservative lawmakers and policy advocates championing small government and free market ideas.
Former FERC chief Moler, under whose watch the commission opened the transmission grid for wholesale suppliers, represented both AAE and Enron. Electric USA, a group that lobbied against deregulation, claimed in May 1999 that Enron was providing up to 75% of the coalition's funding.
Two other coalitions Enron worked with on the issue were the Business Council for Sustainable Energy, a group of energy executives and companies and trade associations, and the Coalition for Competitive Energy Markets (CCEM), another industry trade alliance.
The company replicated this strategy in the states. By joining forces with PG&E Energy Services, the retail unit of PG&E Corp., and Shell Energy Services Co. LLP, part of Shell Oil Co., Enron created the New York Energy Providers Association (NESPA) to lobby New York's Public Service Commission.
In Louisiana it reportedly funded the Alliance for Lower Electric Rates Today (ALERT), which lobbied for deregulation in the state. The Direct Access Alliance in California, the North Carolina Coalition for Customer Choice in Electricity, South Carolinians for Competitive Electricity, the Competitive Power Coalition in Massachusetts (later, Enron parted ways with the Coalition) also coordinated efforts with Enron.
Campaign donations
Since 1989, Enron, its Political Action Committee and employees contributed almost $6 million to political parties and candidates at the federal level, according to the Center for Responsive Politics (CRP). More than two-thirds of it went to Republicans.
The company showered its largesse on several influential politicians, but none more than President Bush, who received $736,800 from Enron since he first ran for Texas governor in 1994-by far the largest amount Enron has given to any one politician. Senators Kay Bailey Hutchison and Phil Gramm, both Texas Republicans, received $101,500 and $101,350, respectively, from the company. Democratic Representative Ken Bentsen received $44,250 and Representative Sheila Jackson Lee, also a Democrat, took $39,200.
In 2000, Gramm, whose wife was on the board of the company, sponsored a bill to allow mutual funds to hold shares and receive income from publicly traded partnerships. Enron lobbied on the issue.
Former GOP presidential candidate and Senate Majority Leader Bob Dole received $95,650 in contributions from the company's employees and PAC. During his Senate days Dole had championed several issues where Enron had stakes, including the Section 29 tax credit for coalbed methane. In the early 1990s, Enron was one of the biggest beneficiaries of the tax break.
One of Enron's powerful friends in Congress was House Majority Whip Tom DeLay, R-Texas, who received $28,900 from the company employees since 1989. Deregulation legislation DeLay proposed in the 104th Congress was so favorable to the company that it was dubbed the Enron bill. Roll Call reported last February 2002 that DeLay had recommended the company to hire three political operatives in 1998 to conduct a grassroots campaign to push deregulation. Subsequently, the company hired the three strategists in early 1998: Ed Buckham, who had served as DeLay's chief of staff just weeks before, Karl Gallant, who worked as consultant to DeLay's political action committee, and John Hoy, a partner at Schuman, Hoy & Associates, which worked for DeLay during the 1996 GOP convention.
"Kenny Boy" and Bush
Enron's ties to the Bushes are well documented. Ken Lay, who turned the firm from a natural gas company into a global business behemoth, was close to both George H. W. Bush and George W. Bush.
During the senior Bush's failed 1992 re-election bid, Lay, a co-chairman of the president's campaign, chaired the host-committee of the 1992 Republican National Convention. Between 1990 and 1992, Lay and his wife, Linda, contributed $5,000 in hard money to Bush, according to CRP.
Bush signed the two key bills that significantly altered the country's energy landscape, the 1992 Energy Policy Act and the Natural Gas Wellhead Decontrol Act of 1989. Enron profited from the enactment of both laws.
In an October 13, 1992 commentary in the Houston Chronicle, Lay listed these and other favors that Bush doled out to the energy industry. In the long-term interest of a strong domestic exploration and production sector, President Bush championed alternative minimum tax relief for independent oil and gas producers and fought against efforts to enact federal pre-emption of states' pro-rationing regulation, he wrote. President Bush not only knows energy policy, he has lived it. George Bush is the energy president.'
Like father, like son
Lay has been a political and financial backer of the current president since the time Bush decided to run for Texas governor.
The Center first reported in The Buying of the President 2000 that Enron employees and directors had contributed $550,025 to Bush through June 30, 1999, making the company the top patron of the then-governor. (According to CRP, Enron has given $736,800 to Bush since 1993.)
Enron, the Lays, and Jeffrey Skilling, who briefly succeeded Lay as the CEO, each gave $100,000 to President Bush's 2001 inaugural fund. After the Florida voting fiasco, the Lays had given $10,000 to the Bush-Cheney 2000 Recount Fund, the maximum amount the fund accepted.
Internal Revenue Service revenue records show that the Bush campaign used Enron's corporate jets during the Florida election controversy. Bush's Recount Fund paid more than $13,000 to Enron for the use of the company's jets, but political campaigns typically are required to pay only a fraction of the actual costs for the flights.
Some two-dozen letters released by Texas archivists in February last year revealed that the Enron chief had personally lobbied the governor on several issues.
Lay's first letter to Bush, on Feb. 15, 1995, was on deregulation. Bush signed the restructuring legislation in Texas in 1999.
In another letter, Lay lobbied Bush for tough tort reform legislation, which was also on the Bush legislative agenda. The tort reform bill, which limited damages in lawsuits (which primarily benefited businesses), was enacted in the state in 1995.
The correspondence also shows that Bush had intervened on Enron's behalf on at least two occasions. In April 1997, Bush met with the ambassador of Uzbekistan at a time Enron was negotiating a huge business deal in that former Soviet republic.
You will be meeting with Ambassador Sadyq Safaev, Uzbekistan's Ambassador to the United States on April 8th, Lay wrote Bush in a 1997 letter. Enron has established an office in Tashkent and we are negotiating a $2 billion joint venture with Neftegas of Uzbekistan, and Gazprom of Russia to develop Uzbekistan's natural gas and transport it to markets in Europe, Kazakhstan, and Turkey. This project can bring significant economic opportunities to Texas, as well as Uzbekistan. ... I know you and Ambassador Safaev will have a productive meeting which will result in a friendship between Texas and Uzbekistan.
Another important law that Bush signed in Texas was a sweeping overhaul of the corporate tax system that lowered levies on businesses, an issue Enron had pushed.
Enron's close ties to the Bush gubernatorial administration didn't always yield results. In 1997, the governor made a phone call to then-Pennsylvania governor and now a member of the Bush cabinet, Tom Ridge, to push deregulation in that state.
"I very much appreciate your call to Tom Ridge a few days ago," Lay wrote in an Oct. 17, 1997, letter. "I am certain that will have a positive impact on the way he and others in Pennsylvania view our proposal to provide cheaper electricity to consumers in Philadelphia as well as make it possible for open and fair competition at a much earlier date." Ultimately, Ridge did not back the Enron proposal.
Similarly, the company's methanol-producing plant on the Houston Ship Channel had a string of air pollution violations dating back to the early 1980s, when it had a different owner (Enron bought the plant from Tenneco in late 1991). Enron officials said they would obtain one of the voluntary pollution-reduction permits offered under a Bush-sponsored program launched in 1999. However, in 2001, when the Texas legislature moved to end the failed voluntary effort, Enron had yet to obtain a permit.
Energy policy
In 2001, while Vice President Cheney was formulating a national energy policy, Lay met with Cheney for 30 minutes. Lay gave Cheney an eight-point agenda that included arguments against price controls on wholesale electricity, according to a report in The Wall Street Journal,giving Enron and other companies unfettered access to the electricity transmission system and removing regulatory obstacles to building new generating plants and power lines. The Journal said the energy plan the administration unveiled in May last year reflected many of those same priorities.
A report prepared for Representative Henry A. Waxman (D-Calif.) by the minority staff of the Committee on Government Reform said at least 17 policies in the White House energy plan were advocated by Enron or would benefit Enron financially.
The Vice President's office said the White House National Energy Policy Development Group, the task force that oversaw the energy policy, had met with Enron officials six times.
Enron had great access to the administration from its beginning. When the president was putting together his team, Enron lobbyist Ed Gillespie, of Quinn Gillespie & Associates, briefly served in the Commerce Department transition team. Gillespie, worked as acting director of public affairs for the Commerce Department for 15 days, helping Secretary Donald Evans recruit his staff, according to The Wall Street Journal. (His partner, Jack Quinn, served as White House counsel in the Clinton administration.)
In the early days of the Bush presidency, Enron spent at least $2.46 million on lobbying, records showed.
The Center revealed in January 2002 that 14 of the top 100 officials in the Bush administration had owned Enron stock.
Ties to the Clinton administration
Since 1990, Enron has given Democrats $1.5 million in hard and soft money contributions, roughly one fourth of the amount it gave to Republicans during the same period, according to CRP. Enron had privileged access to the Clinton administration as well. The company was one of the major beneficiaries of Clinton's economic diplomacy, which promoted the interests of American businesses abroad. Most of the money that Enron received from OPIC and ExIm Bank was granted during the Clinton years.
Company executives regularly accompanied top administration officials on overseas trips, and lucrative business deals were signed on several such foreign visits.
As the Center reported in The Buying of the President (1996), Lay signed a contract for a 2,000 megawatt power plant in India worth an estimated $400 million while accompanying the late Secretary of Commerce Ron Brown on a trade mission to that country in January 1995. Enron also won a contract to build a $920 million power plant on the West coast of India and a $1.1 billion contract for offshore gas and oil production. The Dabhol project, which was worth $2.8 billion, ran into a series of roadblocks, and the local Indian utility, the sole customer, stopped payments in June 2001 following a dispute. Enron owned 65 percent of the project.
Cheney, Secretary of State Colin Powell and a series of other top Bush administration officials and diplomats reportedly lobbied Indian leaders to save Dabhol. OPIC documents released in January 2002 revealed that the National Security Council had intervened on behalf of Enron on the Dabhol issue.
In 1994, during a Brown mission to Russia, Rodney L. Gray, chairman and chief executive officer of Enron International, finalized a deal to develop a market for Russian gas in Europe. During the 1991-92 election cycle, when Brown served as the chairman of the Democratic National Committee, Enron gave $28,525 to the Democratic party. (Enron gave $42,000 to the Democratic party in the 1993-94 cycle.)
During a trade trip to Bosnia and Croatia in July 1996, Brown's successor, Mickey Kantor, helped a senior Enron official that accompanied the secretary clinch a deal to construct a $100 million power plant, the Boston Globe reported. Six days before the trip began, Enron made a $100,000 contribution to the Democratic National Committee.
An Enron executive was part of a team that accompanied Commerce Secretary William Daley to Africa from Nov. 30 to Dec. 7, 1998. In 1997, Enron officials were part of trade missions led by Energy Secretary Hazel R. O'Leary.
In 1998, when Brooksley Born, then chief of the Commodity Futures Trading Commission, proposed regulating derivatives, Enron was one of a host of derivative users and underwriters who lobbied the Federal Reserve Board and the Treasury Department against it, The Wall Street Journal revealed in October last year. Fed Chairman Alan Greenspan and Treasury chief Robert Rubin vehemently opposed the move.
Congress passed a moratorium on any new regulation of derivatives, and then toward the end of the administration's term enacted legislation placing most of the derivatives outside the purview of regulation.
The creative use of derivatives was one of the means Enron used to keep debt off its books.
A most-favored corporation
Enron Corp. successfully lobbied? either alone or in conjunction with other companies ? the federal government and state governments at least 49 times. Here is a list of the company's successes.
Federal
Issue
Outcome
Elimination of natural
gas price control
President
George H.W. Bush signed the Natural Gas Wellhead Decontrol Act in 1989,
removing some key regulatory barriers, including the natural gas price
controls mandated by the Natural Gas Policy Act of 1978.
Mojave pipeline
FERC gave
the project, a partnership of Enron and El Paso Natural Gas, its final
approval in May 1990.
Restructuring of
natural gas pipeline operations
The Federal Energy Regulatory Commission restructured interstate pipeline
operations in April 1992.It separated sales and transportation services,
allowing customers to choose supply and transportation services from any
provider. The move paved the way for greater domestic exploration and
production.
Section 29 tax credit
for coal bed methane and tight-sands natural gas recovery
Tax
credit for non-conventional fuels production, under Section 29 of Internal
Revenue Code, was established in the Windfall Profit Tax Act. Wells dug in
1992 were eligible for the subsidy until this year. The credit, which
ultimately expired in 2002, was extended on several occasions by Congress
thanks in part to Enron's lobbying.
Exemption from PUHCA
The SEC
exempted Enron from the Public Utility Holding Company Act, which bans
utilities from investing in unrelated, and potentially risky, businesses in
1993.
Open Access rulings
On April 24, 1996, FERC issued a pair of rules favorable to Enron. The open-access
rule forced utilities to unbundle generation and transmission services and
bring wholesale transmission transactions in an open-access transmission
tariff. The commission also ruled to facilitate the states' restructuring of
the electric industry and allowed retail customers to choose service
providers.
Enron-PGC merger
In 1997, FERC approved Enron's merger with Portland General Corporation in
record time. According to Enron, it was the first merger approved by the
FERC since October 1994.
Exemption from
Investment Company Act of 1940
In 1997,
the SEC exempted Enron from provisions of the Investment Company Act of 1940
which prohibit U.S. companies from leaving debt from overseas projects off
the books.
Congressional
moratorium on derivative regulation
A 1998 proposal by Brooksley Born, the Commodity Futures Trading Commission chief,
to regulate derivatives prompted hectic lobbying by Enron and other
derivative users and underwriters. The proposal, which was also opposed by
:{
}:
Fed Chairman Alan Greenspan and Treasury chief Robert Rubin, did not pass.
:{
}:
In fact, Congress passed a moratorium on derivative regulation.
Alternative minimum tax
Enron and others lobbied for the
repeal of the alternative minimum tax. The 1997 balanced-budget agreement
relaxed its rules, reducing the potential tax liability of companies that invest in new machinery.
I-69 highway
Enron
lobbied for the NAFTA highway, which would extend the existing
Canada-to-Indiana artery all the way to Texas and Mexico. Congress
authorized the project in 1997. Although the precise route through some
states has not been finalized, construction has begun in Mississippi.
Wind energy production
tax credit
Enron had
been one of the main beneficiaries of the federal wind energy production tax
credit, created in 1992. The subsidy has been extended every two years since
then.
Privatization of power
at military bases
A 1988
bill mandated the Defense Department to buy power from local utilities.
After the lobbying efforts by Enron and others, the Pentagon issued a
directive in 1998, to privatize base utilities. In 1999, Enron clinched a
10-year, $25 million deal to supply energy to Fort Hamilton, N.Y.
African Growth and
Opportunity Act
The bill,
signed by President Clinton in May 2000, sets condition for new aid and
trade benefits to African states. Among the conditions are opening up their
economies to foreign businesses.
Increase in the limit
of H-1B visa for workers from foreign countries
In
October 2000, Congress approved a bill that raised the limit of the
temporary visa from 115,000 to 195,000. Lay had personally lobbied Congress
on the issue.
FERC Order 637
:{
}:
The order, issued in 2000, further deregulated natural gas distribution, by
:{
}:
refining the remaining pipeline regulations. One of the effects of the order
was the development of a market for natural gas commodity trades.
Commodity Futures Modernization Act of 2000
The
legislation had a provision precluding the Commodity Futures Trading
Commission from regulating Enron's trading in energy derivatives; this made
permanent the moratorium Congress had passed in 1998.
Deregulation in States
Issue
Outcome
Arizona
The state
passed the restructuring legislation in May 1998. The Arizona Corporation
Commission, which is responsible for regulating utilities, has opened
utility territories to competition and granted certificates to several
providers. (In early 1999, Enron applied for clearance to sell electricity
in the state.)
California
California enacted a deregulation bill in 1996. Enron signed contracts with
industrial and other customers worth millions of dollars. It suspended the
restructuring activities in September 2001, following the power crisis.
Connecticut
The restructuring legislation was signed into law on April 29, 1998. Enron had
lobbied on the issue. (According to the Associated Press, nearly three years
after Connecticut deregulated its power market, approximately 21,000
residential electric customers have switched from the two utilities in the
state.)
Delaware
The Electric Utility Restructuring Act was enacted in March 1999.
District of Columbia
A
regulatory order to restructure power market was issued in September 2000.
Illinois
Illinois
inaugurated an eight-year deregulation and restructuring process in 1997.
Maine
Legislation to restructure electricity market was passed in 1997.
Maryland
Maryland
legislators passed utility deregulation legislation in April 1999
Massachusetts
The
Massachusetts legislature passed its deregulation law in November 1997 and
the state started competition in March 1998.
Michigan
The state
took concrete steps toward deregulating power market in June 2000 and two
deregulation bills were signed into law in June 2001
New Hampshire
Beginning
in May 1996, New Hampshire took a series of legislative and regulatory steps
to restructure its power market. Enron, which had lobbied for deregulation
in the state, won a pilot project.
New Jersey
New
Jersey passed deregulation legislation in 1999.
New York
New York
Public Service Commission issued a restructuring order in May 1996. Orders
for restructuring six state utilities were approved in 1997 and 1998.
Ohio
Ohio's
legislature passed deregulation legislation in 1999. It allowed consumers to
choose their supplier of electricity beginning 2001.
Oregon
Oregon
passed its first deregulation measure in 1999. Enron owns Oregon's largest
utility, PGE, which is the company's largest asset.
Pennsylvania
The
state's deregulation bill was passed in 1996. Enron and PECO, the local
utility, quibbled over competing deregulation plans; the PECO-favored plan
was ultimately adopted, although Pennsylvania deregulation did allow Enron
to enter the market.
Rhode Island
Rhode
Island was one of the first states to restructure its power market. Governor
Lincoln Almond signed the restructuring law On Aug. 7, 1996. Breaking ranks
with other independents and marketers, Enron backed the legislation.
Texas
The Texas deregulation bill favored incumbent utilities over outsiders, but did expand
Enron's opportunities in the state. The law took effect in January this
year. Among the first companies to enter the retail market was New Power
Co., an Enron spinoff that declared bankruptcy in June.
Virginia
Virginia
enacted restructuring legislation in 1999. Competition in power supply began
in January this year.
Arkansas
The state
enacted its first deregulation bill in April 1999. The restructuring will
not start before October 2003, according to the Energy Information
Administration.
Montana
Though
Montana passed legislation in May 1997, the process will not start until
July 2004.
Nevada
Beginning
in 1997, Nevada legislators and regulators took a series of steps toward
deregulation. Later they suspended part of the process.
New Mexico
The state
legislature passed a deregulation law in 1999, but in March 2001 delayed it
until July 2008.
Oklahoma
In 1997,
Oklahoma enacted a law calling for deregulation by July 1, 2002. A bill in
May 2001 delayed the deregulation process indefinitely.
Other Favors in States
Issue
Outcome
Cut in gas production
In 1992,
when the gas prices fell, the Texas Railroad Commission, which regulates oil
and natural gas in the state, set limits on natural gas production. Enron
and other gas companies lobbied for the production cuts.
Texas Environmental
Health and Safety Audit Privilege Act
The 1995
legislation, which was dubbed the polluter immune legislation by critics,
allowed companies to police themselves. When companies violate state
environmental laws, they do not have to make that information public. Enron
Methanol was a major beneficiary.
Tort reform in Texas
Texas
implemented a series of tort reform measures in the mid-1990s, under the
watch of then-Governor George W. Bush. Enron and other corporations had been
lobbying for such legislation to restrict lawsuit for years.
Corporate tax
reduction
The 1999
Tax legislation signed by Bush reduced corporate taxes as well as sales and
property taxes. Enron lobbied for the measure.
International
Issue
Outcome Dhabol Power Project (India)
Several
Clinton administration officials helped Enron clinch the $2.8 billion
project, and later intervened several times on Enron's behalf to keep the
controversial and ill-fated project alive. The intervention was continued by
the Bush administration.
Mozambique pipeline
In 1995,
the Clinton administration, U.S. diplomats and some legislators reportedly
played a key role in Enron getting a natural gas development and pipeline
project in Mozambique.
Re-bidding for a power
plant in the Commonwealth of Northern Mariana Islands
After
Enron lost out to a Japanese company in the first bidding, the U.S. energy
giant sought Tom DeLay's help to reopen the competition. The bid was
re-opened in 1999.
Normalization of trade
ties with Vietnam
A top
Enron official told a congressional panel the company wanted EXIM Bank and
OPIC to be granted authority to fund projects in Vietnam. The Clinton
administration normalized trade relations with Vietnam in 1999.
Enron Corp. hired at least 28 former government officials to work for it either
as employees, officers, directors, consultants or lobbyists.
Individual
Position at Enron
Position in government
J. Bennett Johnston
Consultant/lobbyist
Former
U.S. Senator. He chaired the Senate Committee on Energy and Natural
Resources
Robert Mosbacher
Consultant and joint venture partner
Former
Commerce Secretary
Brent Scowcroft
Director
of Global Power and Pipelines, an Enron subsidiary with interests abroad.
National
Security Adviser to former President George H. W. Bush
Marc Racicot
Lobbyist
Former
Montana governor and current chairman of the Republican National Committee
Wendy
Gramm
Member of
Enron's board of directors
Head of
the Commodity Futures Trading Commission
Linda
Robertson
Headed
Enron's Washington office
Clinton
administration Treasury official
Elizabeth
Moler
Lobbyist
Chair of
the Federal Energy Regulatory Commission
Charles
E. Walker
Director
Former
deputy secretary of the U.S. Treasury
Thomas
"Mack" McLarty
Briefly
worked for Enron
White
House chief of staff
Frank
Wisner
Served on
the board of an Enron subsidiary after returning from India
U.S.
ambassador to India
Mike
Andrews
Lobbyist
Former
Democratic member of Congress from Texas
Ed
Bethune
Lobbyist
on deregulation
Former
Republican member of Congress from Arkansas
Ed
Gillespie
Lobbyist
Former
communications director at the RNC and a top communications advisor to Bush
during the campaign
Gene E.
Godley
Lobbyist
Assistant
Secretary of the Treasury in the Carter administration
Greg
Simon
Lobbyist
Media and
telecommunications adviser to former Vice President Al Gore
Ken
Raisler
Lobbyist
Former
general counsel of the Commodity Futures Trading Commission
Edwin A.
:{
}:
Buckham
:{
}:
Lobbyist
Former
chief of staff to House Majority Whip Tom DeLay, R-Texas
Michael Lewan
Lobbyist
Chief of staff to Senator Joe Lieberman (D-Conn.) from 1989-92
Enron joined at least 28 separate coalitions that lobbied in Washington or state capitols on various issues. Enron is no longer active in many of these groups; others, having succeeded or failed in their efforts to affect legislation, were disbanded.
African Growth and Opportunity Act Coalition
A corporate coalition that lobbied on the African Growth and Opportunity Act. Chevron, Mobil, Exxon, Enron, Bank of America, the Gap, Texaco, Amoco, Citicorp, and Coca-Cola were members.
Alliance for Capital Access
The Alliance represented about 50 companies, including Enron, and lobbied Congress on the regulation of junk bonds high interest corporate debt. Kinder-Care Learning Centers and Manor Care were among the other members.
Alliance for Lower Electric Rates Today (ALERT)
The coalition, representing groups of residential and business consumers, was formed in 1996 to fight for deregulation of the power generation industry. It was active in several states, including Louisiana, Arkansas, Florida and Virginia.
American Council for Capital Formation
The Council's goal is to restructure U.S. tax, regulatory, and environmental policies in a manner that is favorable to capital-intensive industries. Ken Lay was a member of the board of directors. Former Treasury chief and Enron lobbyist Lloyd Bentsen and former Senator William E. Brock, were also on the board. Former Cabinet members Lloyd Bentsen (also an Enron lobbyist), William E. Brock, George P. Shultz, and former Federal Reserve chairman Paul A. Volcker were also on the board.
American Institute for International Steel
AIIS is a Washington-based trade group of steel importers. It has lobbied on steel tariffs.
American Legislative Exchange Council
ALEC, a group of state lawmakers and policy advocates that champions small government and free market ideas, supported a deregulation plan similar to the one Enron advocated. In 1997, Lay spoke at the council's 24th annual meeting in New Orleans. Enron was one of the financial backers of the council.
Americans for Affordable Electricity
Enron was a member of this lobbying coalition of power consumers, producers and marketers that lobbied for deregulation. Former Federal Energy Regulatory Commission Chairman Elizabeth Moler, who was with the Washington law firm Vinson & Elkins, lobbied for the group. According to Electric USA, a group that lobbied against deregulation, Enron provided as much as 75% of the puppet coalition's funding. Other Members included Exxon Corporation, Kmart Corporation and Koch Industries.
Americans for Fair Taxation
This group wants to replace the federal income tax system with a national sales tax on the final purchase of new goods and services. Enron was one of the financial backers of the group.
Business Council for a Sustainable Energy
The Business Council for Sustainable Energy consists of energy companies and trade associations. According to its web site, the Council supports policies and programs that increase energy efficiency, accelerate the development of renewable energy resources and promote greater use of natural gas. Its current members include Honeywell, the Maytag Alliance to Save Energy and the American Wind Energy Association.
Citizens for a Sound Economy
A think tank that advocates for less government oversight of the private sector, lower taxes and limited government. It lobbied on utility deregulation. Enron funded CSE studies.
Coalition for Competitive Energy Markets
A coalition of power marketers that advocated utility deregulation. Its members included Coastal Electric Services, Destec/Dow Chemical, Electric Clearinghouse, Equitable Resources, and Valero Energy, as well as Enron Power Marketing.
Coalition for Gas-based Environmental Solutions
A group of gas producers, pipeline operators and distributors that favors environmental regulations that would promote the use of natural gas over coal and other energy sources. Other members included Consolidated Natural Gas Co., Amoco Production Co., ANR Pipeline Co., ARCO Oil and Gas Co., Chevron Corp., Tenneco Gas and TransCanada PipeLines Ltd. John Palmisano was named executive director of the Coalition in 1995, while employed as Enron's director of environmental policy.
Competitive Power Coalition
A New England coalition of independent power producers, co-generators and power marketers that worked with Enron on deregulation. Enron left the coalition when its interests diverged from the other companies.
Direct Access Alliance
A coalition of energy service providers, marketers, and large power consumers that negotiated with California's three largest electric utilities and lobbied the California Public Utilities Commission to adopt a single statewide tariff for direct-access customers. It had some 30 members including the University of California, PG&E Energy Services and Enron Corp.
DOD Competition Coalition
A group of independent power and renewable energy producers, industrial end-users, natural gas industry associations and some utilities that advocated privatization of power supply in military bases. Among its other members were Geothermal Energy Association, California Energy Co., National Taxpayers Union, Citizens for a Sound Economy, American Forest and Paper Association, Elcon, Destec, Interstate Natural Gas Association of America, NGSA, UtiliCorp United and Wisconsin Electric Power Co.
Electric Power Supply Association
A trade association that represents competitive power suppliers, including independent power producers, merchant generators and power marketers. It advocates a competitive electric power supply marketplace, to be achieved through utility deregulation.
Emissions Marketing Association
Formed by a group of energy companies, including Enron, the group's goal was to promote market-based solutions for curbing state and regional air pollution problems. It also lobbies for the development of markets for trading emissions credits. Other members included Duke Power Co. and Wisconsin Electric Co.
Energy Group
A coalition of energy companies that lobbied on legislation to reauthorize the Commodity Futures Trading Commission. Among its members were BP Amoco, J. Aron & Co., Koch Industries, Mobil Business Resources Corp., Phibro, and Sempra Energy Trading Corp., as well as Enron Capital & Trade Resources Corp.
International Climate Change Partnership
A worldwide coalition of companies and trade associations from the industrialized world that aims to play a role in the international policy process on climate change. Its members include Boeing, General Electric, AT&T, Halliburton, Allied Signal, Dow Chemical, 3M, Dupont and Electrolux.
International Energy Development Council
A coalition of banks, construction companies and electric power utilities with interests in private power projects overseas. Among its members are Bank of America, Bechtel Enterprises Inc., Black & Veatch Power Development, Chase Manhattan Bank, Citicorp N.A., Coastal Power Corp. and Cogen Technologies.
Interstate Natural Gas Association of America
A trade organization of the natural gas pipeline industry in North America that represents most of the interstate natural gas transmission pipeline companies operating on the continent.
Mid-Atlantic Power Supply Association
A coalition of wholesale energy marketers, generation companies, and retail electricity suppliers that wanted to play a role in the deregulation processes in Pennsylvania, New Jersey and Maryland. Other members included the retail divisions of Consolidated Natural Gas Co., the now bankrupt PG&E Corp., Green Mountain Power Corp., and of Shell Oil Co.
National Wetlands Coalition
A corporate coalition that has lobbied against the Wetland Protection Program and advocated changes to Section 404 of the Clean Water Act, the primary federal program regulating activities in wetlands. Other members included Amoco, Arco, BP America, Conoco, Exxon, Fina, Freeport-McMoran, Hunt Oil, Kerr-McGee, Marathon, Mobil, Occidental, ODECO, Oryx, Panhandle Eastern, Phillips, and Shell.
New York Energy Providers Association
An energy coalition formed to promote and intervene in the deregulation process in New York. Other members included the retail divisions of Consolidated Natural Gas Co., the now bankrupt PG&E Corp., Green Mountain Power Corp., and of Shell Oil Co.
Oxygenated Fuels Association
A global trade group that promotes the use of oxygenated fuel additives to improve the combustion performance of gasoline. Among members were Texaco, El Paso Corp Merchant Energy, and Qatar Fuel Additives Co., as well as Enron Clean Fuels Company.
Pew Center on Global Climate Change
The Center's Business Environmental Leadership Council is composed of corporations that have similar positions on global warming. Members include Toyota, Boeing, Lockheed Martin, Sunoco, and BP Amoco. The Center on Global Climate Change is financed by the Pew Charitable Trusts.
Power Trading Council
A group of power marketers and large industrial power consumers who joined together to fight transmission system rules. It argued that a 1996 Federal Energy Regulatory Commission order that mandated utilities to open up power lines had several loopholes that nullified the order's intent.
Texas Renewable Power Coalition
A group of wind companies that promoted renewable energy. Members included FPL Energy, Inc. and American National Power, as well as Enron Wind Corp.
More stories about
George W. Bush, Enron Corp., Ken Lay, Kenneth Lay, Enron, Enron scandal, Federal Energy Regulatory Commission, Wendy Lee Gramm, Jeffrey Skilling, InterNorth, Deregulation, Houston Natural Gas, Energy Task Force, Vinson & Elkins, California electricity crisis
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https://digbysblog.blogspot.com/2007/11/its-just-like-hell-week-by-digby.html
November 11, 2007
It's Just Like "Hell Week"
by digby
... or maybe they just wanted to blow off some steam. And anyway, "bad guys always lie" so you have to torture them.
FOREMAN: On Friday, Michael Mukasey became attorney general of the United States despite his refusal to define an interrogation practice known as waterboarding, essentially convincing a person that he is drowning as torture. In a world where terrorists really are out there trying to kill us, where is the bright line between what must be done and what should be done? Retired Navy Lieutenant Commander Charlie Swift teaches, now teaches at Emery Law School in Atlanta and still represents one of the Guantanamo detainees. And with me in Washington, David Rivkin, an official at the Justice Department in the Reagan and George H.W. Bush administration. Professor, let me start with you. Where do we stand in this debate now. It seems now that we've gone through months of trying to decide what we think torture and what is not.
LT. COMDR. CHARLIE SWIFT, U.S. NAVY (RET.): Well, as far as waterboarding goes, it's an unusual debate to begin with, because as far as the military was concerned with, that was decided back in 1890 during the Spanish-American war when General Crowder ruled that water boarding was always illegal and never justified and we tried Japanese soldiers who did it to our troops during World War II where again we said it was illegal. So, it would seem that the bright line is on the other side of waterboarding, at least historically.
FOREMAN: Listen to what John Edwards said at a town hall meeting on Tuesday about the debate.
(BEGIN VIDEO CLIP)
JOHN EDWARDS (D), PRESIDENTIAL CANDIATE: Can you believe that we are having a debate in America about what kind of torture is tolerable? I will tell you what kind of torture is tolerable - no torture is tolerable. The United States of American should not be engaged in torture.
(END VIDEO CLIP)
FOREMAN: Mr. Rivkin, a lot of Americans in the polls seem to have a similar-type view, why is it so hard, why can't we agree on a definition and stick to it?
DAVID RIVKIN, MILITARY LAW EXPERT: Incidentally, it is not a debate about whether torture is permissible, at least in my mind, it's what things amount to torture. And with all due respect to my friend Charlie, there are several forms of waterboarding. Waterboarding is a very capricious term, it connotes a bunch of things. There are clearly some forms of waterboarding [that are] torture and off the table. They may well be some waterboarding regimens that while tough and useful in extracting information are not torture. My problem with the critics is that they don't want to have, contrary to what Senator Edwards said, we are ought to have a debate as a serious society about what stress techniques of interrogation and what to do with it. Let me point out one thing, we actually waterboard our own people. Are we torturing our own people?
FOREMAN: But we're waterboarding our own people to give them an idea of what they would encounter if they were captured by somebody else.
RIVKIN: Well, forgive me, as a matter of law and ethics, if the given practice like slavery and prostitution is officially odious, you cannot use it no matter what our goals is, you cannot even use it to volunteers. So, if all forms of waterboarding are torture then we are torturing our own people, and the very same instructor who spoke before Congress the other day about how it's torture, is guilty of practicing torture for decades. We as a society have to come up with the same baseline using (inaudible) in all spheres of public life instead of somehow singularizing this one thing, which is interrogation of combatants and we need to look at it in a broader way.
FOREMAN: Then, why don't we Professor Swift, just in deference with what the American people believe in, I think, why don't we just back away from anything that gets close to this line?
SWIFT: I think we should. To me, it is unfathomable that we are up against the line. You know, again, looking back at World War II, what history has taught us and what we found is that the reliable means of getting intelligence, at least in the context of a war, are using those things that build rapport with the person that they find out that you are not the ogre that they have been told. They begin to question the people who are leading them, and eventually, that leads to actionable intelligence and it is reliable, and you see, that is the real problem with anything that is coercive. When you force somebody to talk, you cannot count on what they tell you. It is going to - in that case, I think it is really an unreliable form of interrogation, and again, that is why we don't use it in court, because it is not reliable data.
FOREMAN: I seem like I have heard this in a lot of places, the same comment, what's your response to that?
RIVKIN: It is historically and practically not true for a very simple reason. First of all, the reason stress techniques were used if you look at it is because there are four building techniques of the FBI. This has been reported in the newspapers like "Washington Post" and the "New York Times." In late 2001, early 2002, I'm not working. You are not able going to be able with Khalid Shaik Mohammed, because while they're evil, they're enormously committed to their ideology. They're prepared to die for it. Point number one. Second, bad guys always lie. Why will you try to build a rapport with them, will interrogate them stressfully. If you have enough time, your biggest problem is they say nothing. If they start talking, you're able to go back and, for example and you ask, where is your safe house? You go and you see if he told you the truth.
FOREMAN: These are borderline techniques you're talking about. If they were done to you, would you consider them torture?
RIVKIN. No. I am not, by the way, I am not even propounding waterboarding. My problem is that there is a range of stress techniques including temperature manipulation, sensor manipulations and maybe sometimes waterboarding that are actually used. Look, when people go for basic training for hell week, they sleep little bits of time at a time, their diets. There's lots of abuse, instructors yelling at (inaudible).
FOREMAN: I have to cut you for a moment for a last word, very quickly, from Professor Swift, are we any closer, briefly to coming to a conclusion as to where we're going with this debate and it seems like it is going on forever, and it sill is lively as ever?
SWIFT: Well, the reason we can't have the debates, to get down to particular techniques is that the administration won't tell us exactly what they are doing and won't tell Congress exactly what they are doing, so when one lies on the edge of these things, it is impossible to have a debate until Congress completely looks at the question and stops using general terms. Congress has tried general terms, general terms haven't work but we're going to have need a specific debate.
FOREMAN: I'm afraid, we have to go. Professor Swift, thanks so much. Mr. Rivkin as well.
I was on the Seder show earlier today and mentioned that broadcast(mangling the date Commander Swift mentioned, unfortunately.) It was in response to Sam's question as to whether the US has truly gone over the cliff. I said it was a near thing, mostly because of people like our friend Professor Rivkin there.
This man claims that if an American trainee can endure something, it can't legally be called torture. He shamefully goes even further to state that if we call it torture, it means that all of those who have trained our troops to withstand it are guilty of being torturers.
He neglects, of course, to admit that the recruits and trainees who are put though such exercises can quit at any time and they know very well that their instructors won't actually kill them. The total lack of control in the hands of someone who believes you are an enemy is what what makes waterboarding torture, and people who do it voluntarily have control. That's the difference, and it's clear to anyone who isn't an intellectual fraud as Rivkin is.
He and others (like Pat Buchanan) are now saying that we need to make waterboarding explicitly illegal if we have a problem with it --- even though one would think that any torture that was used by the Spanish inquisition and Pol Pot would automatically come under the heading of "torture" which is illegal under at least five different statutes and treaties. They are trying to pretend that waterboarding isn't already illegal, pretending that waterboarding is merely "controversial" so they are pushing for a "debate."(Swift even admits that they've left us no choice between the weasel words, parsing and secrecy.)
There is good reason to surmise that one of the main reasons why they are pushing for this legislation is so that Bush, Cheney and Rumsfeld can't be indicted for war crimes retroactively. (Kind of like their friends the Telcoms.) After all, that's the real reason Mukasey was instructed to say that he didn't know if waterboarding was illegal. If he had, he might have been required to arrest some very important people who we know approved it.
But Rivkin's bobbing and weaving serves another purpose. He's literally defining deviancy down. He submits that these "stress positions" and the "hot and cold" and the waterboarding and other things they've done (plus God only knows what we aren't yet aware of) are necessary when you are dealing with "bad guys" who always lie. And anyway, if Army rangers can endure it in training then so can suspected terrorists (who've been blindfolded, stripped, sodomized repeatedly with "suppositories", held in painful restraints for days, subjected to extreme cold while being splashed with water and denied sleep.) This is what the right wing has left of their principles: if our special forces guys can live through something during their training that means it's ok for us to do it to others under much more terrifying circumstances.
There has been tragic a shift in our culture's taboos, thanks to schmucks like Alan Dershowitz and others who put this on the menu in the days after 9/11 and normalized the idea that torture might be ok --- as long as we're the torturers. There are plenty of people who agree with that reflexively. After all, our president told them right after 9/11 that we are :{good::(style="font-style:italic"):}:
[H]ow do I respond when I see that in some Islamic countries there is vitriolic hatred for America? I'll tell you how I respond: I'm amazed. I'm amazed that there is such misunderstanding of what our country is about, that people would hate us. I am, I am -- like most Americans, I just can't believe it. Because I know how good we are, and we've go to do a better job of making our case.
So, if we are good (exceptionally good!) that means that whatever we do is good. But torture is bad. So, that means that no matter what we do it can't, by definition, be torture. See how that works? (I wonder if he also thinks this is a useful way to "make our case" to the rest of the world that we are good.)
This is more right wing rabbit-hole logic, and it's become a sick parody of itself now that they are openly using it to defend torture techniques from the Spanish Inquisition. You ask this man Rivkin if he would consider waterboarding torture if it were done to him and he said unequivocally, no. (He learned his lesson well. The last Republican lawyer who went out and had himself waterboarded was fired when he called it torture.) It's actually just another tool that good people use to defeat "bad guys." No biggie. It's not even illegal.
.
digby 11/11/2007 03:01:00 PM
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text file overview
rivkin718
==
sparked by pruitt art'l
DAVID RIVKIN POW POSTER BOY
Horner defends (schnare holo BS?)
==
David B. Rivkin, Jr., (born in 1956 in the former Soviet Union
defends Yoo torture and Rumsfeld (we tortuted two US contractyors one a whistleblower about arms getting to enemy?!
Jon Doe WI
RICO
Georgetown University, and a Master of Arts degree in Soviet Affairs with high honors also from Georgetown
[[ off bs
Mr. Rivkin has represented corporations in alien tort statute and civil RICO litigation, as well as in challenges to federal agency actions and constitutional challenges to state statutes. He has provided compliance advice to companies, as well as handled enforcement proceedings before government agencies on issues arising out of various multilateral and unilateral sanctions (ITAR, EAR and questions relating to dealings with proscribed countries), Foreign Corrupt Practices Act (FCPA), anti-boycott issues and environmental and energy matters.]]
Reagan DOJ
[He also handled the development and implementation of President Bush's de-regulatory initiatives, carried out from 1991 to 1992, which focused on carrying out a review of existing federal structures in an attempt to make them more cost-effective.[14]
From 1990 to 1991, Rivkin served as the Associate General Counsel of the United States Department of Energy. In this post he was responsible for developing and implementing national and international environmental and energy strategies. He also helped in the passing of the Clean Air Act (1990) and FERC Order 636, known as the Restructuring Rule, designed to allow more efficient use of the interstate natural gas transmission system by fundamentally changing the way pipeline companies conduct business.[13][15] During his term, national energy markets were deregulated.[12] ENRON?]
1992 FERC issued Order No. 636 (The Restructuring Rule).
off bs
david rivkin dereg pipeline Order 636
{{In the mid-to-late 1980’s, the natural gas market was deregulated through a series of federal policies, most notably Federal Energy Regulatory Commission (FERC) Order No. 436, the Natural Gas Wellhead Decontrol Act of 1989 (NBGWDA), and FERC Order No. 636 of 1992. Each of these policies was designed to eliminate the regulatory constraints by the federal government on the natural gas market, largely, to help avoid a repeat of the tough economic issues resulting from the 1970’s energy crisis (“The History of Regulation,” 2004). Enron capitalized on the governmental deregulation of the natural gas market by providing consumers with greater access to natural gas via their nationwide pipeline system. Due to deregulation, as supplies increased and the price for natural gas fell by over 50 percent from 1985 to 1991, Enron was able to charge other firms for using their pipelines to transport gas. Likewise, Enron was also able to transport gas through other companies’ pipelines (Culp and Hanke, 2003, p. 8).]}}
H&W
December 1999 to join Baker Hostetler, where he is a partner in the Washington, D.C
{Congressional hearings[edit]
Rivkin has testified numerous times in front of the U.S. Congress on such matters as the judicial nomination of Justice Sotomayor,[21][22] the consequences of prolonged detention at Guantánamo Bay.[23] and the clemency controversy surrounding Lewis ("Scooter") Libby's 2007 conviction on obstruction justice.}
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andrew grossman GMU law, federal overreach, renta-tom on ozone.
16 tags!
WSJ 180 on Trump; oct 25 called for Mueller to resign; four days later Rivkin and Lee called for pardons, including himself;
Pruitt blocks Garland:
OKla Strong Liberty 2.0 pacs:
Other donors to the PAC have included David Green, the CEO of Hobby Lobby, and Harlan Crow, the billionaire real estate developer from Texas who is reported to be a close personal friend of Justice Clarence Thomas. Partners from major U.S. law firms with interests at the Supreme Court, including Reginald J. Brown at Wilmerhale and David B. Rivkin at Baker Hostetler have also contributed.
==
Cryptic coloration:
official bios are a whole sub-genre unto themselves in terms of what they reveral, concel and distort: the brag about writing regulations in terms of being the good guy who proyects the public, but basically an invitation to subvert it; they'll state they worked as staffer on an influential committee, but often will not name the guy (b/c since turfed out into the Pension Plan? Those who are shopping/in the know can guess? Or woyuld be revealed in discussion? Same with litigation on important topics. example :
off bs:
Mr. Rivkin also served as the Associate General Counsel, U.S. Department of Energy (DOE), from 1990-91. At DOE he was responsible for international, constitutional, environmental and energy matters, including global climate change problems, natural gas, hydro and electricity issues, development and implementation of the Natural Energy Strategy, implementation of the Clean Air Act Amendments of 1990, wetlands policy and related issues, development of RCRA and Clean Water Act legislative proposals and deregulation of energy markets. Mr. Rivkin played a significant role in developing the Reagan and Bush Administrations’ regulatory and legislative proposals affecting natural gas and electric utility industries. ENRON
hard to unpack the Yugoslav matter, but apparently he filed papers but justice minister actually argued; ended in a draw? Could not prove INTENT of genocide? Serbia turned over war criminals as a precondtion to getting into the EU (Croatia also under pressure from US via IMF and _?). This seems at odds with US not being subject to international law and GITMO case?
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Argument Recap in Lebron v. Rumsfeld (Padilla's Bivens Suit)
By Alan Z. Rozenshtein Monday, October 31, 2011
filed 2006
===
2012
http://www.slate.com/articles/news_and_politics/jurisprudence/2012/11/new_ruling_donald_rumsfeld_can_t_be_sued_for_torture.html
Why Donald Rumsfeld Can’t Be Sued for Torture
His latest and biggest court victory.
no lnx
Former Defense Secretary Donald Rumsfeld may not be sued by two U.S. citizens who were tortured by members of the military. The U.S. Court of Appeals for the 7th Circuit, which issued the decision, is the third appeals court to let Rumsfeld off the hook legally. But the 7th Circuit decision goes further than the others. By a vote of 7-4, its judges said that no member of our military—presumably even one who personally inflicts torture—can be sued for his related conduct in office.
The facts are a case study in system failure. Donald Vance and Nathan Ertel were Americans working for a private security firm in Iraq. When Vance became suspicious that his employer was selling weapons to groups hostile to the United States, he went to the FBI. Vance and Ertel were then fingered as arms dealers. Military personnel arrested them in 2006 and held them for several weeks.
According to the complaint, Vance and Ertel were held in solitary confinement and subjected to violence, sleep deprivation, extremes of temperature and sound, denial of food, water, and medical care, and other abuses. Though the Army Field Manual (and four judges) calls this torture, the majority opinion prefers the euphemism “harsh interrogation techniques.”
The majority and the dissents clashed over military accountability and the role of the judiciary. The starting point for both sides is Bivens, a 1971 Supreme Court case that allows a victim of a constitutional violation to sue a responsible federal officer for damages when no other law or court ruling gives them an entry into court. The majority argued that the Supreme Court has spent the last three decades reining in Bivens, and it thus cannot sanction Vance and Ertel’s “novel damages remedy” against military personnel. The dissenters attacked this entire mode of analysis: It is incorrect to say that Vance and Ertel are asking the court to create a right to seek damages, they argued, because Bivens already provides it.
The majority also read Supreme Court precedent to say that civilian courts should not “interfere with the military chain of command” without guidance from Congress. And here, Congress has addressed the rights of detainees in laws such as the Torture Victim Protection Act and has chosen not to provide for damages against military personnel. End of story. The dissenters respond by accusing the majority of converting a narrow rule—one that prevents military personnel from suing for injuries related to their service—into a sweeping rule that shields the military entirely from lawsuits by civilians. One telling and troubling point they make: In the 7th Circuit now (Illinois, Indiana, and Wisconsin), a victim of torture by a foreign military who finds his torturer in the United States has a remedy, but a U.S. citizen who is tortured by his own military does not.
Katie Mesner-Hage is a recent graduate of Yale Law School.
==
==
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1600&context=cjil
chic jrnl of int'l law
1-1-2005
Preemption and Law in the Twenty-First Century
David B. Rivkin Jr.
Lee A. Casey
Mark W. DeLaquil
footnote:
Intl
Stud 1, 10 (1999-2000). While the Milosevic regime was committing genocide against Kosovars,
it could not credibly be claimed that he posed even the most attenuated military threat to any of
the NATO members or any of his neighbors (while Milosevic had launched aggressive wars,
using both Belgrade's military and paramilitary proxies, against Slovenia, Croatia, and BosniaHerzegovina,
he was defeated and the prospects of renewed fighting in these areas was
nonexistent). Thus, the embrace of NATO's Kosovo campaign by critics of the US-led regime
change in Iraq demonstrates the infinite elasticity of the underlying legal rules. Similarly,
==
tulsa paper
David B. Rivkin Jr. and Lee A. Casey: It's unrealistic and unfair to make Trump use a blind trust
By David B. Rivkin Jr. and Lee A. Casey Nov 30, 2016
Suggestions that President-elect Donald Trump put his business holdings in a "blind trust" to avoid potential conflicts of interest are unrealistic and unfair. Such a trust would not eliminate the virtual certainty that actions Trump takes as president will affect his personal wealth, for good or ill. The step is not required by law. And presidents who have chosen to use this device held very different assets than Trump's. He can keep his holdings and adopt a reasonable system to avoid conflicts and reassure the American people that the Trump administration is acting ethically.
To establish a blind trust of the sort used by his predecessors, Trump would not merely have to liquidate a securities portfolio and permit an independent trustee to manage those assets. He would have to sell off business holdings that he has built and managed most of his life, and with which he is personally identified in a way that few other business magnates are.
David B. Rivkin Jr. and Lee A. Casey, who practice appellate and constitutional law in the District of Columbia, served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush. Rivkin also served in the White House counsel's office in the George H.W. Bush administration.
https://www.tulsaworld.com/opinion/othervoices/david-b-rivkin-jr-and-lee-a-casey-it-s/article_f0c1cd50-d94d-5203-946c-79b7d514175f.html
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David B. Rivkin, Jr.
Partner, Baker & Hostetler LLP
Washington Square, Suite 1100
1050 Connecticut Avenue, NW
Washington, DC 20036-5304
Phone: 202.861.1731
drivkin@bakerlaw.com
David B. Rivkin, Jr., is a member of the firm’s litigation, international and environmental groups and he cochairs the firm’s appellate and major motions team. He has extensive experience in constitutional,
administrative and international law litigation.
Mr. Rivkin has been involved in numerous high-profile cases. He has represented the 26 States that have
challenged the constitutionality of the Patient Protection and Affordable Care Act and was the lead outside
counsel in the District Court and Court of Appeals. He also represented the Republic of Croatia before the
International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice for a number
of years on a wide range of issues involving international humanitarian law and the laws of war. Mr. Rivkin
also has considerable experience with litigation involving national security-related matters, including
defending Bivens actions brought against former Secretary of Defense Donald H. Rumsfeld. From 2004
through 2007, he served as an expert member of the United Nations Subcommission on the Promotion and
Protection of Human Rights.
Mr. Rivkin has represented corporations in alien tort statute and civil RICO litigation, as well as in challenges
to federal agency actions and constitutional challenges to state statutes. He has provided compliance advice
to companies, as well as handled enforcement proceedings before government agencies on issues arising
out of various multilateral and unilateral sanctions (ITAR, EAR and questions relating to dealings with
proscribed countries), Foreign Corrupt Practices Act (FCPA), anti-boycott issues and environmental and
energy matters.
From 1993 to December 1999, Mr. Rivkin was a member of the Hunton & Williams law firm. Prior to
returning to private practice, Mr. Rivkin served from 1987-1993 in various capacities in the federal
government. During 1992-1993, he was Associate Executive Director and General Counsel of the
President's Council on Competitiveness at the White House. While there, he was responsible for the review
and analysis of legal issues related to the regulatory review conducted by the Council.
Mr. Rivkin also served as the Associate General Counsel, U.S. Department of Energy (DOE), from 1990-91.
At DOE he was responsible for international, constitutional, environmental and energy matters, including
global climate change problems, natural gas, hydro and electricity issues, development and implementation
of the Natural Energy Strategy, implementation of the Clean Air Act Amendments of 1990, wetlands policy
and related issues, development of RCRA and Clean Water Act legislative proposals and deregulation of
energy markets. Mr. Rivkin played a significant role in developing the Reagan and Bush Administrations’
regulatory and legislative proposals affecting natural gas and electric utility industries.
In addition to his positions with the Council on Competitiveness and the Department of Energy, he served in
the office of then Vice President George H.W. Bush as Legal Advisor to the Counsel to the Vice President,
in the White House Counsel’s Office and as Deputy Director of the Office of Policy Development (OPD),
U.S. Department of Justice. While at OPD, he worked on a wide variety of constitutional, domestic and
international issues, including judicial selection, legal policy, immigration and asylum matters and
intelligence oversight.
Prior to embarking on a legal career, Mr. Rivkin worked as a defense and foreign policy analyst, focusing on
Soviet affairs, arms control, naval strategy and NATO-related issues, and served as a defense consultant to
numerous government agencies and Washington think tanks.
===
INTERNATIONAL
Putting the Hague Court on Trial
Updated Aug. 31, 2001 12:01 a.m. ET
By David B. Rivkin Jr. and Lee A. Casey. Messrs. Rivkin and Casey are partners in the law firm of Baker & Hostetler LLP, practicing in its Washington, D.C., office, and served in the U.S. Department of Justice under Presidents Ronald Reagan and George H.W. Bush.
The case against Slobodan Milosevic continued at the International War Crimes Tribunal in The Hague yesterday, with the former Yugoslav dictator now facing potential indictments not just for genocide in Kosovo but also in Croatia and Bosnia. Much of the world rejoices...
TO READ THE FULL STORY
S
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https://www.nytimes.com/2003/07/22/opinion/crimes-outside-the-world-s-jurisdiction.html
Opinion
Crimes Outside the World's Jurisdiction
By DAVID B. RIVKIN JR. and LEE A. CASEYJULY 22, 2003
A crusading Spanish judge, Baltasar Garzón, has been winning praise from human rights groups for trying to prosecute members of the military juntas that ruled, and terrorized, South America in the 1970's. In 1998, he tried to extradite Augusto Pinochet, the former Chilean dictator; last month he got custody of a former navy lieutenant accused of genocide and terrorism in Argentina.
The praise isn't surprising: prosecuting people who are apparently escaping punishment for horrible crimes seems fundamentally sound. The problem is that efforts by Judge Garzón, and others, are based on a legal doctrine that has worrisome implications. That doctrine is ''universal jurisdiction,'' under which every state is entitled to prosecute and punish the officials of every other state for ''international'' offenses. It is a principle that even its most active international practitioner, Belgium, is wisely starting to reject: the governing party plans to amend a law under which activists tried to prosecute George H. W. Bush, Gen. Tommy Franks and Prime Minister Tony Blair for human rights offenses in connection with the wars against Iraq, even though nobody involved is Belgian.
By contrast to those named in the Belgian cases, the man whom Judge Garzón has jailed, Ricardo Miguel Cavallo, doubtless richly deserves prosecution. Mr. Cavallo is accused of kidnapping, torturing and murdering hundreds of people during the ''dirty war'' in Argentina from 1976 to 1983. Under Argentina's amnesty laws, however, Mr. Cavallo cannot be punished; he was extradited to Spain not by Argentina, but by Mexico, where he was living. Judge Garzón is essentially ignoring Argentina's own history and desires.
Universal jurisdiction does have a proper place in international law. It began as a device to fight piracy and slave trading, offenses that took place on the high seas, beyond the boundaries of any individual state. In more recent years, however, universality has been asserted for an increasing number of human rights offenses, even though there is little practice (in the form of actual prosecutions that are accepted as legal by the defendant's own country) to support these claims. Without such a body of consistent and accepted practice, universal jurisdiction remains an academic aspiration rather than an established fact, and rightly so.
If international law really did permit each state to prosecute the leaders of all others, based on its own interpretation of international law, this would prompt a new kind of war, one fought in courtrooms around the globe. Courts, however, are poor instruments of international policy, and such a result would make normal international relations impossible. Defense Secretary Donald Rumsfeld recently said, for instance, with respect to the claims brought against American officials in Belgium, that if United States officials cannot travel to Brussels without the fear of politically motivated prosecution, then the United States would take its business (i.e., NATO headquarters) elsewhere.
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