Sunday, September 22, 2013

The Legal Assassination of Tom DeLay and Criminal Justice Reform

Former House Majority Leader Tom DeLay was not my favorite Congressman while he was in office.

DeLay came to Congress as a Texas conservative, however, he soon abandoned conservative principles to join the Capitol Hill Republican establishment and put his formidable political skills to use growing government, adding billions to the budget through earmarks and playing “the Hammer” to pass Medicare Part D and many of the other excesses that set in motion the loss of the Republican House majority in 2006.

Among conservatives the philosophical and political disappointment in Tom DeLay was deep.

When an ambitious and vindictive Texas Democrat prosecutor indicted him for money laundering and DeLay was forced out of his leadership position and later his seat in Congress, and ultimately convicted of the charges in 2010, Tom DeLay’s fall from grace seemed complete.

Except it wasn’t – not by a long shot.

Tom DeLay, in a remarkable show of character, refused to take a plea bargain.  He refused to admit he was guilty of anything other than being an effective tactician for his Party and he claimed that his prosecution was entirely political – he’d done nothing wrong.

DeLay fought the charges for eight years and yesterday, 11 years after the allegedly criminal activities for which DeLay was indicted occurred, a Texas Court of Appeals not only overturned the verdict against him, it also entered a full acquittal.

Justice Melissa Goodwin wrote in the majority opinion that, “Rather than supporting an agreement to violate the election code, the evidence shows that the defendants were attempting to comply with the Election Code limitations on corporate contributions.”

In other words, the majority on the Court of Appeals found that Tom DeLay was trying to comply with the law that he was convicted of violating – exactly the opposite of the allegations made by the prosecutor.

How can you be convicted of violating a law with which you are “attempting to comply?”

One way – and the most common way – is to run afoul of laws that are so broad, so complex and so subject to arbitrary and capricious enforcement that an ambitious and vindictive prosecutor can use the law to ruin anyone he singles out for personal destruction.

Our own Mark Fitzgibbons and University of Tennessee law professor Glenn Harlan Reynolds have written persuasive articles pointing out that “Given the vast web of legislation and regulation that exists today, virtually any American bears the risk of being targeted for prosecution,” as Professor Reynolds put it.

If prosecutors were not motivated by politics, revenge, or other improper motives, the risk of improper prosecution would not be particularly severe.

However, as Professor Reynolds noted, such motivations do, in fact exist, and they motivate prosecutors to pursue certain individuals, like Tom DeLay, while letting others off the hook.

Tom DeLay summed-up his near decade-long odyssey this way, “If you really look at this, this is an outrage and a violation of freedom, a violation of law and it’s a violation of just decency.”

And that fits perfectly with the original motivation of the case – if your goal is to oust someone from public office, bankrupt them, and destroy their reputation and family then a conviction on the facts and the law is somewhat beside the point.

The decision of the Texas court overturning the verdict and entering a full acquittal in Tom DeLay’s money laundering case is not only a personal vindication for DeLay, it is a clarion call for criminal justice reform and structural changes in the criminal justice system that will more successfully deter prosecutorial abuse in a legal system where today, even a ham sandwich can be indicted by an ambitious and vindictive prosecutor.



The Navy Yard Shootings: The Surveillance State Fails Again

The rampage at the Washington Navy Yard by alleged killer Aaron Alexis, who held a “secret” security clearance, is certainly a tragedy for the families of those killed and wounded, but it is also a stark reminder of the limits – indeed the abject failure – of the surveillance state being built by the federal government under Barack Obama.

As of right now the investigation into Alexis’s background and how he obtained a security clearance is in its early stages. We do know that the Navy has said Alexis enlisted as a full-time Navy reservist in May 2007 and that he was discharged in 2011 after a series of misconduct issues.

A series of “misconduct issues,” yet Alexis still passed the kind of background check that has become ubiquitous in today’s surveillance state?

The attack at the Navy Yard was the worst attack at a U.S. military installation since U.S. Army Major Nidal Hasan, who also had a security clearance, opened fire on unarmed soldiers at Fort Hood, Texas, in 2009, killing 13 people and wounding 31 others.

Hasan said he acted in retaliation for U.S. wars in Muslim countries; however, the obvious warning signs that Hasan was a danger to his fellow soldiers were ignored or brushed aside out of political correctness.

Likewise, Boston bombers Tamerlan and Dzhokhar Tsarnaev were given “background checks,” however the fact that they were involved in radical Islam was either not revealed or was ignored out of political correctness.

The signs the Tsarnaev brothers were capable of planning and carrying out a terrorist attack were there, but they were unrecognized until after the attack due in large measure to the inability of the government to sort through the huge volume of information it is collecting and the failure of the federal government and local governments to share the data collected in a useful manner.

Pfc. Bradley Manning, the Army intelligence analyst who leaked the largest cache of classified documents in U.S. history, and who was recently sentenced to 35 years in prison for violations of the Espionage Act, had a high level security clearance as well.

Manning’s security investigation apparently failed to reveal, or out of political correctness ignored, the “gender identity issues” that he cited as part of his defense and that apparently led him to now prefer to be called Chelsea Elizabeth Manning and to seek to change his sexual identity.

In each of these cases the surveillance state had, or should have had, the information necessary to prevent the action that later proved so catastrophic – but it failed to act.

And it failed to act because it was overwhelmed by the sheer volume of information the surveillance state is collecting and the political correctness that prevents it from focusing on the real threats.

While the NSA sweeps up the telephone records of millions of average Americans going about their daily business, the threats from radical Islam and the personal grievances of someone who sees themselves as being discriminated against are ignored.

Perversely, the government’s failure to deliver on the promise of more security in exchange for less freedom has now brought about new calls for further restrictions on the freedom of average American citizens.

President Obama and Senator Diane Feinstein of California both think we need more gun control and restrictions on our Second Amendment rights.

“Obviously, we’re going to be investigating thoroughly what happened, as we do so many of these shootings, sadly, that have happened, and do everything that we can to prevent them,” the president said.

The problem is that Obama, Feinstein and others of that ilk will not actually be “investigating thoroughly” the vast misallocation of resources and priorities their surveillance state has created – or the political correctness that blinds it to the obvious threats it does expose.

Rather than start with the premise that Americans need less freedom to be safe, if Obama and Feinstein really plan on “investigating thoroughly” what happened at the Navy Yard, they should start by admitting that while the government is looking at everything and everyone it is apparently seeing nothing.



PUTIN & OBAMA ARE WRONG: Here’s What We Mean by “American Exceptionalism”

Russia’s often-shirtless authoritarian strongman Vladimir Putin tells America that it’s “extremely dangerous to encourage people to see themselves as exceptional.”

Obviously, that’s a gross distortion of what we mean when we say “America is exceptional” in world history.

We are not saying the American people are inherently better than people anywhere else. We are saying the American system — of government bound by law — is exceptional, and allowed liberty and the spirit of enterprise to flourish, thus allowing America to quickly become the richest nation in world history.

Of course, Obama has also often mocked the idea of “American Exceptionalism” — for example, famously saying this shocker at a NATO Summit in Strasbourg, France, in 2009:

“I believe in American exceptionalism, just as I suspect that the Brits believe in British exceptionalism and the Greeks believe in Greek exceptionalism.”

No doubt, America is rapidly losing the distinction of being exceptional in today’s world – thanks to Obama and the Left in Congress not understanding what made America so exceptional.

So other countries are passing us by. The United States has fallen from #1 to #10 on the Heritage Foundation’s world index of Economic Freedom — now behind even Socialistic Canada and Denmark.

But America is exceptional in world history because America was the first nation to be “conceived in liberty.”

America is exceptional because of its Constitution.

America is exceptional because it’s the first country in world history to establish a government,  the sole purpose of which is to “secure the blessings of liberty.”

America is exceptional because it was the first nation in human history to put such strict limits on the power of the central government.

America is exceptional because it is the first (and is still the only) nation in human history to be founded on this proposition:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Our rights to “life, liberty, and the pursuit of happiness” are “unalienable” because they are granted by God Himself. And it’s the responsibility of government to protect and secure these rights.

When government trespasses beyond this purpose, its activities become illegitimate.

That proposition, this purpose of government — to secure the blessings of liberty — is what makes America exceptional in world history.

As a result of all the limitations on government power imposed by the Constitution, Americans were free to build businesses and profit from their efforts. This allowed America to become the richest nation in world history in a very short period of time.

To the extent other countries are now enjoying liberty and prosperity, it’s because they followed the American example.

If America is no longer exceptional, it’s because our government has mostly ignored the Constitution for the past 90 years or so — since the Presidency of Calvin Coolidge (the last President who actually cut federal spending in real dollars). He really was a great President.

Calvin Coolidge loved to read through the entire federal budget — line by line . . . so he could cross items out of the budget.  He often said nothing gave him more pleasure than saving taxpayers money.

Mostly what our elected leaders do (Democrats and Republicans) is look for ways to get around the Constitution — if they pay any attention at all to the Constitution.

Our political leaders in Washington, DC (not just Obama) respect few limits on government power.

Our political class today treats the Constitution as a set of guidelines, at best — not as law.

I believe America is still exceptional because we at least still have the Constitution — which is still supposed to be the supreme law of the land. We just need to get back to following the Constitution.

America also has an exceptional history that gave us advantages that other counties have not had.

America was settled by courageous people who had a pioneering spirit.

It takes a certain type of person to leave their family, friends, and familiar lives behind and travel to a new land, a wilderness, in search of freedom and opportunity.

Arriving on the shores of a desolate and freezing Cape Cod in November of 1620, half the  passengers on the Mayflower died during the first winter.

The tens of millions of settlers and immigrants who followed them here did not expect anything from the government — certainly were not looking for handouts and free health care.  All they wanted was freedom to build a new life.

That takes courage.  America was built by risk-takers.



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