Category: reason

The Impeachment End Game

The question of whether we will hear testimony from any of the people in Trump’s inner circle appears to have become the hinge on which the entire impeachment process is poised.

If you think about it, it is astonishing—bizarre, really—that we may well reach the end of this entire process without having heard from any of the people in a position to know the answer to the question: what was Trump doing, and why was he doing it?

There are two competing narratives regarding this question: the “Fighting Corruption” narrative and the “Digging Up Dirt” narrative.  In the former, he was doing what presidents often do: dangling a carrot or two (military assistance, a White House meeting) in front of a foreign leader in order to push that leader to take some steps that the president believes to be in the interest of the U.S. (fighting corruption, spending the money we give them judiciously). In the “Digging Up Dirt” narrative, he was dangling the carrots not to advance the interests of the U.S.—indeed, quite possibly in opposition to the national interest—but to inflict damage on his political opponents and thereby advance his own electoral prospects in 2020.

Most reasonable people, I think, would agree that Fighting Corruption is not an abuse of presidential power, but that Digging Up Dirt is. It follows that it is of exceeding importance that we find out which of the narratives is closer to the truth.

Now, let’s pretend that we really and truly want to know which narrative is closer to the truth. If we really and truly want to know what the President was up to and why, we would surely want to hear from those in a position to provide evidence about that, evidence gleaned from their first-hand knowledge of the President’s words and deeds. E.g., Messrs. Bolton, Pompeo, Mulvaney, and Giuliani. And, of course, from the President himself, under oath.

Yet here we are. If Mitch McConnell can hold the Senate Republicans together, we—and by “we” I mean the American people—will have heard from none of them, under oath, about any of this.

How we reached this ridiculous and sorry state of affairs goes something like this. The President publicly ordered his subordinates [here] “not to participate in [the House’s] partisan and unconstitutional inquiry.” Several senior Executive Branch officials publicly announced that they would obey that White House command, and that they would therefore not comply with any House requests (by subpoena or otherwise) for documents or live testimony, unless and until they were directed to do so by a final order of a federal court. House Democrats then made the decision not to take that question to the courts, on the stated ground that the process of obtaining a final judicial determination would take too long, and would push the hearings back into the midst of the 2020 election season.

I wasn’t at all sure, at the time, that this was the right decision—at least, if “the right decision” means “the decision most likely to help resolve the question of what Trump did and why he did it”—and I’m still not sure. I’m not convinced that the process of obtaining a prompt judicial determination on the question of the validity of a House subpoena would necessarily have been so prolonged.  The President’s legal position—that members of the Executive Branch are categorically immune from any compulsion to testify in an impeachment inquiry, at least whenever the President declares that proceeding “partisan and unconstitutional”—is very weak. It has virtually no support in the legal precedents (if you don’t believe me, go back and read White House Counsel Cippolone’s letter and find, if you can, the legal arguments contained therein); it is contrary to a number of Supreme Court precedents that, while not squarely on point, run in very much in spirit in the opposite direction; and it would, if accepted by the courts, effectively excise the impeachment remedy for presidential misconduct from the Constitution going forward, for without the ability to obtain testimony from those individuals carrying out a president’s orders, how will we ever be able to obtain evidence of presidential misdeeds? I don’t see why, in a case of great national importance where time is of the essence, the federal courts could not have disposed of the matter relatively quickly on an expedited basis without having to spend an inordinate amount of time resolving the question.

But that didn’t happen, and it is, at this point, water under the bridge. The House Democrats made the decision to base their case on the evidence provided by more subordinate officials, individuals who were not in a particularly strong position to say what the President’s involvement or motives might have been. That weakened, I think, the case against the President on Article I (though not Article II—see here). Without testimony from people interacting directly with the President on a daily basis, how can we possibly know what the President did and why he did it?  How can we choose between the two narratives? It’s true that no “smoking gun” has been produced—but is that because Trump was Fighting Corruption and there is no smoking gun, or is it because he was Digging Up Dirt but the only people who were in a position to know that have not told us yet what they know?

The ball now is apparently about to move into the Senate’s court. The Senate’s Rules, assuming they use the Rules adopted for the Clinton trial, will permit, though they will not require, calling witnesses to testify.

If you were a Senator, and you actually wanted to get to the bottom of what happened, what’s the argument for not seeking the testimony from Trump and those in his inner circle? Even if you currently believe the Fighting Corruption story—what reason would you have for not wanting to settle the matter and get the evidence that could well confirm that story and exculpate the President?

There is, I suppose, the “Nyah Nyah, you made your bed, now sleep in it” argument: “You, Democrats, had your chance, in the House hearings, to call all the witnesses you wanted to call, and you chose to build your impeachment case on the evidence you obtained thereby, and we’re going to stick entirely to what you have come up with.”

That’s not the kind of argument, though, that you would expect from someone who really and truly wanted to know—and who thought it was important that we all know—what actually happened. And it does make one suspicious that Senators who take that position during the upcoming trial don’t really and truly want to know what happened, does it not?

Moreover, circumstances have materially changed since the House hearings were held, so the “Nyah, Nyah” argument loses much of whatever force it may have had: John Bolton has announced that he has changed his position; whereas he had told the House that he would not comply with a House subpoena unless ordered by a court to do so, he is now “prepared to testify” if called before the Senate.

I want to hear what he has to say. Under oath, not just in his book.  I can’t imagine anyone who genuinely wants to know whether Trump abused his power not wanting to hear what he has to say, under oath.

Co-blogger Keith Whittington posted a thoughtful essay here on the meaning of the special oath that Senators will take before the trial convenes, swearing to “do impartial justice” in impeachment proceedings. The duty to do “impartial justice,” he writes,

… does not mean that Senators have to wait until the formal start of a trial to start assessing whether an officer has committed impeachable offenses or limit their deliberations to the specific evidence and arguments that the House managers and the counsel for the president might present on the Senate floor. It does not mean that they have to sit for the impeachment trial with an open mind and no prejudgments on the merits of the case. It does not mean that they have to refrain from making public statements about an officer’s conduct.

But, he goes on, doing impartial justice surely does mean that senators “have a duty to conduct a trial that provides both sides an adequate opportunity to present their case, [and] a duty to consider the evidence and the legal arguments that are relevant to determining whether the president has committed an impeachable offense.”  I know that justice is supposed to be blind, but it’s not supposed to be willfully blind as to what actually happened.

It will only take four Republican Senators to do the right thing here; we’ll see if they emerge from the Republican caucus. I hope they do.  Otherwise, a truly awful impeachment precedent will have been set, and it will come back to bite us in the ass in the future.  The President’s strategy of total stonewalling will have prevailed, and any future president engaging in misconduct will surely forbid his associates from testifying as to his actions, thereby crippling our ability to uncover and punish it. Presidential impeachment—which, while flawed in many ways, has helped to keep most of the people we have elected as Chief Executive from doing truly awful things with the power we have placed in their hands—will no longer function as a deterrent to presidential misconduct.  Whatever you may think of the current charges against our current president, I don’t think you should rejoice at that outcome.

 

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Neil Peart, Champion of Individualism

Neil Peart, the longtime drummer for the Canadian band Rush, died last week of brain cancer, leaving behind a legacy as one of rock’s most technically accomplished percussionists and perhaps its most articulate libertarian lyricist. The 67-year-old songwriter regularly championed individualism, choice, and freedom over soul-crushing conformity.

Early Rush songs are saturated with such messages. The song “Freewill,” released on 1980’s Permanent Waves album, puts self-determination at the root of the human experience: “If you choose not to decide, you still have made a choice.”

In “The Trees,” released two years earlier, Peart tells a fable about a forest where the maple trees demand to be made equal with the taller oaks. It doesn’t go well:

So the maples formed a union
and demanded equal rights.
“The oaks are just too greedy.
We will make them give us light.”
Now there’s no more oak oppression
for they passed a noble law.
And the trees are all kept equal
by hatchet, axe, and saw.

Sometimes Peart’s individualism could be compressed into a single line, as in Rush’s 1981 hit “Tom Sawyer”: “No, his mind is not for rent/to any god or government.”

Rush’s 1976 album 2112, which Peart dedicated to the “genius of Ayn Rand,” tells the story of a futuristic theocracy that outlaws individualism and creativity, including the electric guitar. Rand’s novel The Fountainhead had a particularly heavy influence on Peart, who described the affinity he felt for the book’s protagonist in a 1997 interview with Scott Bullock for Liberty magazine:

Howard Roark stood as a role model for me—as exactly the way I already was living. Even at that tender age [18] I already felt that. And it was intuitive or instinctive or inbred stubbornness or whatever; but I had already made those choices and suffered for them.

As Bullock notes, the driving force here wasn’t Rand’s full-throated endorsement of commerce; it was her defense of individual will and artistic integrity against corrupting conformity, whether the pressure to conform comes from the government or from soulless corporate executives.

As time went on Peart, distanced himself from Rand and some of her more radical policy notions. The Liberty profile mentions that Peart supports a government safety net. By 2015, he was telling Rolling Stone: “For a person of my sensibility, you’re only left with the Democratic Party….The whole health-care thing—denying mercy to suffering people? What? This is Christian?” Rush even sent libertarian-leaning Sen. Rand Paul (R–Ky.) a cease-and-desist letter in 2010 to get the then-candidate to stop using its songs at rallies and in videos, although the band’s lawyers insisted that this was a solely a copyright issue.

So went Peart’s ideological journey. Meanwhile, the music he made will continue to have a life of its own, inspiring people with its defense of individual freedom for decades to come.

Bonus link: Matt Kibbe on Peart and Rand.

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Cory Booker, Who Urged Democratic Unity, Drops Out of Presidential Race

Sen. Cory Booker (D–N.J.) announced Monday that he is withdrawing from the 2020 presidential race.

“Today I’m suspending my campaign for president with the same spirit with which it began,” Booker said in a video posted to his Twitter account. “It is my faith in us, my faith in us together as a nation that we share common pain and common problems that can only be solved with common purpose and a sense of common cause.” 

He will now pivot to campaigning for reelection to the Senate.

The tone of Booker’s video reflected the tenor of his campaign, which was defined by calls for Democratic unity. “It’s not going to be a referendum on who [President Trump] is,” Booker said in a speech excerpted in his farewell video. “It’s going to be a referendum on who we are, and who we are to each other and for each other.”

Though the senator warned against Democratic infighting, he was willing to rock the boat on a few notable occasions. He is one of few high-profile Democrats who is still sometimes willing to vouch for school choice, rightly pointing out that such options help the vulnerable minorities that progressives claim to stand for. In the July Democratic debate, he criticized former Vice President Joe Biden’s record on criminal justice issues, particularly as it pertains to his hardline record on harsh punishments for drug offenses. And in the November debate, he pushed back on the wealth tax proposed by Sen. Elizabeth Warren (D–Mass.), reminding viewers that several other European countries have attempted to implement the levy with failed results.

But Booker never could quite catch on in the polls, lingering around 2 percent for most of the race. He may have been hamstrung by his history of grandstanding in congressional hearings. While politicians on both sides of the aisle are no stranger to that type of thing, Booker never could quite execute such moments with the same verve: His “I am Spartacus“ moment during Associate Justice Brett Kavanaugh’s confirmation hearings was widely mocked as theatrical and disingenuous. 

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The Impeachment End Game

The question of whether we will hear testimony from any of the people in Trump’s inner circle appears to have become the hinge on which the entire impeachment process is poised.

If you think about it, it is astonishing—bizarre, really—that we may well reach the end of this entire process without having heard from any of the people in a position to know the answer to the question: what was Trump doing, and why was he doing it?

There are two competing narratives regarding this question: the “Fighting Corruption” narrative and the “Digging Up Dirt” narrative.  In the former, he was doing what presidents often do: dangling a carrot or two (military assistance, a White House meeting) in front of a foreign leader in order to push that leader to take some steps that the president believes to be in the interest of the U.S. (fighting corruption, spending the money we give them judiciously). In the “Digging Up Dirt” narrative, he was dangling the carrots not to advance the interests of the U.S.—indeed, quite possibly in opposition to the national interest—but to inflict damage on his political opponents and thereby advance his own electoral prospects in 2020.

Most reasonable people, I think, would agree that Fighting Corruption is not an abuse of presidential power, but that Digging Up Dirt is. It follows that it is of exceeding importance that we find out which of the narratives is closer to the truth.

Now, let’s pretend that we really and truly want to know which narrative is closer to the truth. If we really and truly want to know what the President was up to and why, we would surely want to hear from those in a position to provide evidence about that, evidence gleaned from their first-hand knowledge of the President’s words and deeds. E.g., Messrs. Bolton, Pompeo, Mulvaney, and Giuliani. And, of course, from the President himself, under oath.

Yet here we are. If Mitch McConnell can hold the Senate Republicans together, we—and by “we” I mean the American people—will have heard from none of them, under oath, about any of this.

How we reached this ridiculous and sorry state of affairs goes something like this. The President publicly ordered his subordinates [here] “not to participate in [the House’s] partisan and unconstitutional inquiry.” Several senior Executive Branch officials publicly announced that they would obey that White House command, and that they would therefore not comply with any House requests (by subpoena or otherwise) for documents or live testimony, unless and until they were directed to do so by a final order of a federal court. House Democrats then made the decision not to take that question to the courts, on the stated ground that the process of obtaining a final judicial determination would take too long, and would push the hearings back into the midst of the 2020 election season.

I wasn’t at all sure, at the time, that this was the right decision—at least, if “the right decision” means “the decision most likely to help resolve the question of what Trump did and why he did it”—and I’m still not sure. I’m not convinced that the process of obtaining a prompt judicial determination on the question of the validity of a House subpoena would necessarily have been so prolonged.  The President’s legal position—that members of the Executive Branch are categorically immune from any compulsion to testify in an impeachment inquiry, at least whenever the President declares that proceeding “partisan and unconstitutional”—is very weak. It has virtually no support in the legal precedents (if you don’t believe me, go back and read White House Counsel Cippolone’s letter and find, if you can, the legal arguments contained therein); it is contrary to a number of Supreme Court precedents that, while not squarely on point, run in very much in spirit in the opposite direction; and it would, if accepted by the courts, effectively excise the impeachment remedy for presidential misconduct from the Constitution going forward, for without the ability to obtain testimony from those individuals carrying out a president’s orders, how will we ever be able to obtain evidence of presidential misdeeds? I don’t see why, in a case of great national importance where time is of the essence, the federal courts could not have disposed of the matter relatively quickly on an expedited basis without having to spend an inordinate amount of time resolving the question.

But that didn’t happen, and it is, at this point, water under the bridge. The House Democrats made the decision to base their case on the evidence provided by more subordinate officials, individuals who were not in a particularly strong position to say what the President’s involvement or motives might have been. That weakened, I think, the case against the President on Article I (though not Article II—see here). Without testimony from people interacting directly with the President on a daily basis, how can we possibly know what the President did and why he did it?  How can we choose between the two narratives? It’s true that no “smoking gun” has been produced—but is that because Trump was Fighting Corruption and there is no smoking gun, or is it because he was Digging Up Dirt but the only people who were in a position to know that have not told us yet what they know?

The ball now is apparently about to move into the Senate’s court. The Senate’s Rules, assuming they use the Rules adopted for the Clinton trial, will permit, though they will not require, calling witnesses to testify.

If you were a Senator, and you actually wanted to get to the bottom of what happened, what’s the argument for not seeking the testimony from Trump and those in his inner circle? Even if you currently believe the Fighting Corruption story—what reason would you have for not wanting to settle the matter and get the evidence that could well confirm that story and exculpate the President?

There is, I suppose, the “Nyah Nyah, you made your bed, now sleep in it” argument: “You, Democrats, had your chance, in the House hearings, to call all the witnesses you wanted to call, and you chose to build your impeachment case on the evidence you obtained thereby, and we’re going to stick entirely to what you have come up with.”

That’s not the kind of argument, though, that you would expect from someone who really and truly wanted to know—and who thought it was important that we all know—what actually happened. And it does make one suspicious that Senators who take that position during the upcoming trial don’t really and truly want to know what happened, does it not?

Moreover, circumstances have materially changed since the House hearings were held, so the “Nyah, Nyah” argument loses much of whatever force it may have had: John Bolton has announced that he has changed his position; whereas he had told the House that he would not comply with a House subpoena unless ordered by a court to do so, he is now “prepared to testify” if called before the Senate.

I want to hear what he has to say. Under oath, not just in his book.  I can’t imagine anyone who genuinely wants to know whether Trump abused his power not wanting to hear what he has to say, under oath.

Co-blogger Keith Whittington posted a thoughtful essay here on the meaning of the special oath that Senators will take before the trial convenes, swearing to “do impartial justice” in impeachment proceedings. The duty to do “impartial justice,” he writes,

… does not mean that Senators have to wait until the formal start of a trial to start assessing whether an officer has committed impeachable offenses or limit their deliberations to the specific evidence and arguments that the House managers and the counsel for the president might present on the Senate floor. It does not mean that they have to sit for the impeachment trial with an open mind and no prejudgments on the merits of the case. It does not mean that they have to refrain from making public statements about an officer’s conduct.

But, he goes on, doing impartial justice surely does mean that senators “have a duty to conduct a trial that provides both sides an adequate opportunity to present their case, [and] a duty to consider the evidence and the legal arguments that are relevant to determining whether the president has committed an impeachable offense.”  I know that justice is supposed to be blind, but it’s not supposed to be willfully blind as to what actually happened.

It will only take four Republican Senators to do the right thing here; we’ll see if they emerge from the Republican caucus. I hope they do.  Otherwise, a truly awful impeachment precedent will have been set, and it will come back to bite us in the ass in the future.  The President’s strategy of total stonewalling will have prevailed, and any future president engaging in misconduct will surely forbid his associates from testifying as to his actions, thereby crippling our ability to uncover and punish it. Presidential impeachment—which, while flawed in many ways, has helped to keep most of the people we have elected as Chief Executive from doing truly awful things with the power we have placed in their hands—will no longer function as a deterrent to presidential misconduct.  Whatever you may think of the current charges against our current president, I don’t think you should rejoice at that outcome.

 

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Neil Peart, Champion of Individualism

Neil Peart, the longtime drummer for the Canadian band Rush, died last week of brain cancer, leaving behind a legacy as one of rock’s most technically accomplished percussionists and perhaps its most articulate libertarian lyricist. The 67-year-old songwriter regularly championed individualism, choice, and freedom over soul-crushing conformity.

Early Rush songs are saturated with such messages. The song “Freewill,” released on 1980’s Permanent Waves album, puts self-determination at the root of the human experience: “If you choose not to decide, you still have made a choice.”

In “The Trees,” released two years earlier, Peart tells a fable about a forest where the maple trees demand to be made equal with the taller oaks. It doesn’t go well:

So the maples formed a union
and demanded equal rights.
“The oaks are just too greedy.
We will make them give us light.”
Now there’s no more oak oppression
for they passed a noble law.
And the trees are all kept equal
by hatchet, axe, and saw.

Sometimes Peart’s individualism could be compressed into a single line, as in Rush’s 1981 hit “Tom Sawyer”: “No, his mind is not for rent/to any god or government.”

Rush’s 1976 album 2112, which Peart dedicated to the “genius of Ayn Rand,” tells the story of a futuristic theocracy that outlaws individualism and creativity, including the electric guitar. Rand’s novel The Fountainhead had a particularly heavy influence on Peart, who described the affinity he felt for the book’s protagonist in a 1997 interview with Scott Bullock for Liberty magazine:

Howard Roark stood as a role model for me—as exactly the way I already was living. Even at that tender age [18] I already felt that. And it was intuitive or instinctive or inbred stubbornness or whatever; but I had already made those choices and suffered for them.

As Bullock notes, the driving force here wasn’t Rand’s full-throated endorsement of commerce; it was her defense of individual will and artistic integrity against corrupting conformity, whether the pressure to conform comes from the government or from soulless corporate executives.

As time went on Peart, distanced himself from Rand and some of her more radical policy notions. The Liberty profile mentions that Peart supports a government safety net. By 2015, he was telling Rolling Stone: “For a person of my sensibility, you’re only left with the Democratic Party….The whole health-care thing—denying mercy to suffering people? What? This is Christian?” Rush even sent libertarian-leaning Sen. Rand Paul (R–Ky.) a cease-and-desist letter in 2010 to get the then-candidate to stop using its songs at rallies and in videos, although the band’s lawyers insisted that this was a solely a copyright issue.

So went Peart’s ideological journey. Meanwhile, the music he made will continue to have a life of its own, inspiring people with its defense of individual freedom for decades to come.

Bonus link: Matt Kibbe on Peart and Rand.

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Indian Prime Minister Modi’s Lawless Reign of Terror

When Indian Prime Minister Narendra Modi promised to bring his Gujarat Model to the rest of the country, everyone thought he meant the pro-growth reforms that had allegedly done wonders for his home state’s economy. But recent events suggest that the real Gujarat Model that Modi had in mind was something else entirely: a government that looks the other way as private militants violently attack disfavored groups. It’s a model that infamously resulted in the slaughter of more than 1,000 men, women, and children, mostly Muslims, over the course of a few days in 2002 when Modi was the state’s chief minister.

Now Modi has done a mini-reenactment at Jawaharlal Nehru University (JNU), a prestigious college in the heart of New Delhi where the opposition has long irritated him. This is no doubt a warning shot to the growing youth resistance against his “papers, please” citizenship law.

Here’s what happened at JNU:

On Sunday evening, January 5, 40 to 50 hoodlums, mostly men but also a few women, faces partially wrapped in scarfs, armed with clubs, iron rods, and sledgehammers, stormed the campus. Eyewitness accounts and video footage suggest that several of these people were members of Akhil Bharatiya Vidyarthi Parishad (ABVP), a student union associated with Modi’s party. They approached a group of students protesting a sudden, massive fee hike and began thrashing them. They bloodied the student president, Aishe Ghosh, and many others.

Then, chanting that the students were traitors who deserve to be shot for opposing the administration, the attackers barged into dorm rooms and went on a rampage, taking care to spare rooms that sported ABVP posters. Muslim students were of course fair game. And so was a blind Hindu student, a Sanskrit scholar and a student of Hinduism no less, whose wall sported a picture of Dr. B.R. Ambedkar, India’s reformist founding father. (Ambedkar has fallen from grace in pro-Modi circles because he was a vigorous opponent of the caste system and other regressive Hindu practices and because his ideas are fueling the constitutional case against Modi’s Hindu nationalism.)

JNU’s vice-chancellor, who is appointed by the central government, failed to mobilize campus security to stop the mayhem. The Delhi police, which is under the command of the Modi government rather than local authorities, ignored the frantic calls of students for over an hour. A veritable battalion of cops was standing right outside the campus gates, but not a single one went in to stop the attack. The cops even stood by as ambulances were vandalized right in front of them.

Modi hasn’t said a word condemning the violence at JNU. No assailant has been charged or arrested. The police claim they’re zeroing in on some suspects, but—judging by how they have handled cow vigilantes lynching Muslims suspected of consuming beef—you shouldn’t be surprised if anyone arrested faces no more than a slap on the wrist.

At the exact same time that the JNU students were getting bashed, the cops were preparing a rap sheet against some of them, including Ghosh, for allegedly vandalizing university computer servers the day before to stop students from registering. Ghosh denies the allegation. The ABVP circulated a video—retweeted by the vice chancellor—that purported to show that the Sunday violence was triggered by a prior episode when a “lefty student” punched an ABVP member. But it turned out to be the opposite: An ABVP supporter appears to have been attacking a “lefty student.”

All of this—law enforcement standing by as private militants allied with the ruling party go on a violent spree, criminalizing the victims, spreading disinformation to confuse the public—was Modi’s modus operandi in Gujarat. And the ominous parallels with that grisly episode don’t stop there.

The Gujarat carnage was preceded by a long vilification campaign against Muslims, a strategy he Modi has been replicating in miniature against the university. The prime minister has long castigated JNU students and faculty as communists and traitors who want to break up the country—never mind that last year’s Nobel laureate in economics along with two of Modi’s own cabinet ministers hail from the university. Modi’s home minister and right-hand man, Amit Shah, known for his brass knuckles politics, has repeatedly said the university’s “tukde tukde gang“—meaning the gang that wants to dismember India piece by piece—needs to be “taught a lesson.” Modi popularized this moniker a few years ago when some of JNU’s firebrand student leaders harshly protested the abrupt hanging of a Muslim man who had allegedly attacked the Indian parliament.

Such statements signaled to Modi and Shah’s most extreme supporters that they wanted the university targeted, without having to bother with actually giving orders to law enforcement authorities. Not that Modi’s crew is shy about issuing orders when they think it’s necessary. A few weeks ago, cops appeared to vandalize Jamia Millia University, a Muslim institution in New Delhi. Modi’s comrade, Yogi Adityanath, the chief minister of Uttar Pradesh, went even further. His police showed up at Aligarh Muslim University and roughed up students protesting Modi’s faith-cleansing policies that would strip an untold number of Indian Muslims of citizenship.

Over 60 students were injured, three critically. Several students have just disappeared. A Muslim female journalist who was covering a protest in nearby Lucknow was arrested and allegedly assaulted by police.

Such tactics are backfiring. The anti-government protests, especially on college campuses, are spreading. Students at many elite colleges have gone on strike and are holding candlelight vigils to protest the events at JNU and AMU as well as Modi’s citizenship law.

A normal politician would back off in the face of such public opposition and extend an olive branch, especially given how quickly Modi’s carefully cultivated squeaky-clean image is getting trashed in India and abroad. But Modi and Shah are doubling down.

Previously, they had dubbed secularists defending religious freedom as “Muslim appeasers.” Now even moderate free-market conservatives or middle-of-the-road liberals expressing concern over the direction of the country are being branded as the radical left, according to Madhvan Narayanan, a veteran Indian journalist.

Why is Modi doing this? What’s his endgame?

Many fear he is deliberately baiting protesters and fomenting widespread unrest to build an excuse to cancel elections in Delhi next month and put the city under the president’s rule. His party is expected to lose handily, just as it has done in other state elections in recent months, thanks to the growing dismay over his assaults on citizenship. There is even speculation that he is preparing to suspend India’s constitution and declare an emergency, just as Indian Prime Minister Indira Gandhi notoriously did in 1975.

That may or may not be the case. But one open question about Modi always has been whether he was pushing an extreme Hindu nationalist agenda to gain power or pursuing power to push his agenda. His growing enemies list—and the private and state violence he will apparently deploy against those on it—suggests that the former might be the case.

This means no one outside of Modi’s band of merry brothers is safe in India anymore. All of India is Gujarat now. Dissent is out. Violence is in.

As one poster at a protest noted: “First AMU. Then JNU. Next You.”

A version of this column appeared in The Week.

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Indian Prime Minister Modi’s Lawless Reign of Terror

When Indian Prime Minister Narendra Modi promised to bring his Gujarat Model to the rest of the country, everyone thought he meant the pro-growth reforms that had allegedly done wonders for his home state’s economy. But recent events suggest that the real Gujarat Model that Modi had in mind was something else entirely: a government that looks the other way as private militants violently attack disfavored groups. It’s a model that infamously resulted in the slaughter of more than 1,000 men, women, and children, mostly Muslims, over the course of a few days in 2002 when Modi was the state’s chief minister.

Now Modi has done a mini-reenactment at Jawaharlal Nehru University (JNU), a prestigious college in the heart of New Delhi where the opposition has long irritated him. This is no doubt a warning shot to the growing youth resistance against his “papers, please” citizenship law.

Here’s what happened at JNU:

On Sunday evening, January 5, 40 to 50 hoodlums, mostly men but also a few women, faces partially wrapped in scarfs, armed with clubs, iron rods, and sledgehammers, stormed the campus. Eyewitness accounts and video footage suggest that several of these people were members of Akhil Bharatiya Vidyarthi Parishad (ABVP), a student union associated with Modi’s party. They approached a group of students protesting a sudden, massive fee hike and began thrashing them. They bloodied the student president, Aishe Ghosh, and many others.

Then, chanting that the students were traitors who deserve to be shot for opposing the administration, the attackers barged into dorm rooms and went on a rampage, taking care to spare rooms that sported ABVP posters. Muslim students were of course fair game. And so was a blind Hindu student, a Sanskrit scholar and a student of Hinduism no less, whose wall sported a picture of Dr. B.R. Ambedkar, India’s reformist founding father. (Ambedkar has fallen from grace in pro-Modi circles because he was a vigorous opponent of the caste system and other regressive Hindu practices and because his ideas are fueling the constitutional case against Modi’s Hindu nationalism.)

JNU’s vice-chancellor, who is appointed by the central government, failed to mobilize campus security to stop the mayhem. The Delhi police, which is under the command of the Modi government rather than local authorities, ignored the frantic calls of students for over an hour. A veritable battalion of cops was standing right outside the campus gates, but not a single one went in to stop the attack. The cops even stood by as ambulances were vandalized right in front of them.

Modi hasn’t said a word condemning the violence at JNU. No assailant has been charged or arrested. The police claim they’re zeroing in on some suspects, but—judging by how they have handled cow vigilantes lynching Muslims suspected of consuming beef—you shouldn’t be surprised if anyone arrested faces no more than a slap on the wrist.

At the exact same time that the JNU students were getting bashed, the cops were preparing a rap sheet against some of them, including Ghosh, for allegedly vandalizing university computer servers the day before to stop students from registering. Ghosh denies the allegation. The ABVP circulated a video—retweeted by the vice chancellor—that purported to show that the Sunday violence was triggered by a prior episode when a “lefty student” punched an ABVP member. But it turned out to be the opposite: An ABVP supporter appears to have been attacking a “lefty student.”

All of this—law enforcement standing by as private militants allied with the ruling party go on a violent spree, criminalizing the victims, spreading disinformation to confuse the public—was Modi’s modus operandi in Gujarat. And the ominous parallels with that grisly episode don’t stop there.

The Gujarat carnage was preceded by a long vilification campaign against Muslims, a strategy he Modi has been replicating in miniature against the university. The prime minister has long castigated JNU students and faculty as communists and traitors who want to break up the country—never mind that last year’s Nobel laureate in economics along with two of Modi’s own cabinet ministers hail from the university. Modi’s home minister and right-hand man, Amit Shah, known for his brass knuckles politics, has repeatedly said the university’s “tukde tukde gang“—meaning the gang that wants to dismember India piece by piece—needs to be “taught a lesson.” Modi popularized this moniker a few years ago when some of JNU’s firebrand student leaders harshly protested the abrupt hanging of a Muslim man who had allegedly attacked the Indian parliament.

Such statements signaled to Modi and Shah’s most extreme supporters that they wanted the university targeted, without having to bother with actually giving orders to law enforcement authorities. Not that Modi’s crew is shy about issuing orders when they think it’s necessary. A few weeks ago, cops appeared to vandalize Jamia Millia University, a Muslim institution in New Delhi. Modi’s comrade, Yogi Adityanath, the chief minister of Uttar Pradesh, went even further. His police showed up at Aligarh Muslim University and roughed up students protesting Modi’s faith-cleansing policies that would strip an untold number of Indian Muslims of citizenship.

Over 60 students were injured, three critically. Several students have just disappeared. A Muslim female journalist who was covering a protest in nearby Lucknow was arrested and allegedly assaulted by police.

Such tactics are backfiring. The anti-government protests, especially on college campuses, are spreading. Students at many elite colleges have gone on strike and are holding candlelight vigils to protest the events at JNU and AMU as well as Modi’s citizenship law.

A normal politician would back off in the face of such public opposition and extend an olive branch, especially given how quickly Modi’s carefully cultivated squeaky-clean image is getting trashed in India and abroad. But Modi and Shah are doubling down.

Previously, they had dubbed secularists defending religious freedom as “Muslim appeasers.” Now even moderate free-market conservatives or middle-of-the-road liberals expressing concern over the direction of the country are being branded as the radical left, according to Madhvan Narayanan, a veteran Indian journalist.

Why is Modi doing this? What’s his endgame?

Many fear he is deliberately baiting protesters and fomenting widespread unrest to build an excuse to cancel elections in Delhi next month and put the city under the president’s rule. His party is expected to lose handily, just as it has done in other state elections in recent months, thanks to the growing dismay over his assaults on citizenship. There is even speculation that he is preparing to suspend India’s constitution and declare an emergency, just as Indian Prime Minister Indira Gandhi notoriously did in 1975.

That may or may not be the case. But one open question about Modi always has been whether he was pushing an extreme Hindu nationalist agenda to gain power or pursuing power to push his agenda. His growing enemies list—and the private and state violence he will apparently deploy against those on it—suggests that the former might be the case.

This means no one outside of Modi’s band of merry brothers is safe in India anymore. All of India is Gujarat now. Dissent is out. Violence is in.

As one poster at a protest noted: “First AMU. Then JNU. Next You.”

A version of this column appeared in The Week.

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No Sealing of Photos and Plans of $20M, 29,000 Sq. Ft. House (with 55,000 Sq. Ft. of Improvements)

Vernon W. Hill and Shirley Hill own “what [they] describe as the largest single-family home in Southern New Jersey, consisting of 29,236 square feet of living space and an additional 55,543 square feet of improvements on a 7.21-acre portion of a 44-acre parcel. Its 2008 assessment was $20,814,500.

Completed in 2002, the home is built in an Italianate style and boasts a Barre granite facade, granite terraces, cascading waterfalls and several reflecting pools. There are six bedrooms and eleven full bathrooms. The walls and floor of the two-story foyer are marble. A fountain of black onyx marble anchors a circular marble staircase to the second floor. The living room is topped by a large circular dome with a Venetian plaster finish. There are three kitchens (two on the first floor and a full-size commercial kitchen in the basement), a gym, a library, two massage rooms, a hair salon, a billiards room, six storage or pantry rooms, laundry and trash rooms, a wine cellar, and two “viewing rooms” for admiring the landscape. The two-story “Lemon Room,” a sort of orangery for lemon trees, was added in 2006.

Hill, as I understand it, is a past chairman and CEO of Commerce Bancorp, and founder of Metro Bank UK; a Fortune article called him “the P.T. Barnum of banking.” (He was also a party to an interesting copyright / work-for-hire / injunction case, TD Bank N.A. v. Hill (3d Cir. 2019), related to a business book that he wrote.)

The Hills sued in N.J. Tax Court to challenge their 2008 tax assessment, and litigated the case up to the state’s intermediate appellate court, the Appellate Division. They lost, though it sounds like they could have lost more, had the assessor so argued: “[A]lthough the property was assessed at $20,814,500, [the tax] court determined its true market value to be $34,426,812 and, because the municipality did not file a counterclaim, the court did not raise the assessment on the property.”

Now, though, the financial dispute is over, and what’s left is the sealing dispute. The case apparently wasn’t supposed to be sealed:

Plaintiffs filed a complaint in this court challenging the tax year 2008 assessment. At the request of the parties, the court entered a consent protective order in which the parties agreed to maintain the confidentiality of documents and information exchanged during discovery. The consent protective order did not provide that documents and information filed with the court would be sealed from public disclosure pursuant to Rule 1:38-11…. [T]his court denied plaintiffs’ post-trial motion pursuant to Rule 1:38-11 to seal the trial court record ….

But the record appears to have been treated as sealed, so the Appellate Division case was marked “Record Impounded,” which drew the interest of Larry S. Loigman, a New Jersey lawyer who had litigated state public records cases before. He then intervened to unseal the case, and Monday Tax Court Judge Patrick DeAlmeida agreed (Hill v. Township of Moorestown, 2020 WL 116112 (N.J. Tax Ct.)), though the decision won’t take effect for 30 days, to give the parties the time to appeal.

Indeed, the court largely rejected even the Hills’ much-narrowed request (they “no longer request that the entire record be sealed,” but focus only on a few items). The court concluded that, under New Jersey law (and especially the New Jersey open court rules, drafted by the Supreme Court Special Committee on Public Access to Court Records), nearly everything in the record should be unsealed, except some personal e-mail addresses and information about the location of a security system on the property:

The Special Committee’s rejection of an exemption for appraisal reports submitted to this court highlights two salient points. First, the public interest in judicial resolution of local property tax appeals outweighs the privacy interests of the taxpayer to information in an appraisal report submitted to this court, at least in the context of proprietary business information. Second, public disclosure of appraisal reports submitted to this court is favored whenever the court uses the reports to facilitate resolution of the appeal, even when the reports are not admitted into evidence. This is significant because it is apparent to this court that the Special Committee’s discussion of appraisal reports was premised on the assumption the reports would be subject to public disclosure if admitted into evidence at trial….

Plaintiffs argue they have a constitutional right to privacy that includes the right to exclude the public from viewing their home and its contents and to prevent public disclosure of the details of their premises … [including the appraisal report that must be submitted with a challenge, and that contains] a detailed description of the property, interior and exterior photographs, and a floor plan…. While recognizing the Special Committee considered and rejected recommending excluding appraisal reports submitted in Tax Court matters from public disclosure, plaintiffs argue the Special Committee considered only those reports containing proprietary commercial information and not appraisal reports concerning the privacy interest of a taxpayer in their residence.

Plaintiffs also argue that … the information that is the subject of their motion is of limited value to the public, because this court issued a written decision explaining at length how it determined the true market value of plaintiffs’ home for tax year 2008 and most of the Hill Appeal record, including portions of the parties’ appraisal reports, is available for public disclosure.

In addition, plaintiffs submitted a certification asserting the construction of their home was “the subject of intense public scrutiny and media attention[,]” including “attempts by the paparazzi to invade the privacy of the home[,]” which is not wholly visible from the street.

Plaintiffs have hosted events at the home at which Governors and the Speaker of the House of Representatives were guests. On those occasions, a secret service detail and security personnel were required to secure the property. Plaintiffs have taken steps to ensure the privacy, safety, and security of the property for themselves and their guests by regularly requiring those who visit the property, including the appraisers involved in this matter, to sign a confidentiality agreement.

According to plaintiffs, “the interior home photographs and in depth descriptions” of the property “are extremely sensitive and private, and release could jeopardize not only the safety, health and security of [their] family, but of those honored guests [they] choose to invite into [the] home.” Plaintiffs recognize this court’s opinion affirming the tax year 2008 assessment contains a description of their home, but argue “the items [they] seek to protect are much more descriptive, personal and intrusive and could be used by someone wishing to breach the security systems [they have] taken steps to provide.”

Loigman argues this matter is a “garden variety” appeal of an assessment on a residential property, of the type routinely tried in the Tax Court without a sealed record. He argues the grand nature of plaintiffs’ home is insufficient to distinguish it from any other residential property and the potential injuries asserted by plaintiffs are speculative. He notes plaintiffs should have expected their decision to challenge the tax year 2008 assessment on their property would result in public scrutiny of their home, as is the case with any taxpayer who files a residential tax appeal.

Loigman argues the public has a right to know plaintiffs have not been treated with favoritism by the municipal tax assessor and how this court determined the true market value of plaintiffs’ home for local property tax purposes. He points out that although the property was assessed at $20,814,500, this court determined its true market value to be $34,426,812 and, because the municipality did not file a counterclaim, the court did not raise the assessment on the property….

The court almost entirely sided with Loigman, reasoning in particular:

[A.] [A]erial photographs of the property included in an appraisal report submitted at trial. The photographs each contain the word “Google” in the lower righthand corner, suggesting they were obtained from a commonly available resource.

The court concludes plaintiffs have not established disclosure of the photographs “will likely cause a clearly defined and serious injury to any person or entity” under Rule 1:38-11. While the court finds plaintiffs and their home have been the subject of intense public interest and scrutiny, there is nothing in the motion record establishing by a preponderance of the evidence how plaintiffs would be injured by release of the aerial photographs or that any injury would be serious or likely to occur.

Moreover, this court adopts the rationale of the Special Committee that the public interest in assuring the fairness of the process by which property taxes are levied outweighs the taxpayers’ privacy interest in personal information contained in appraisal reports submitted to this court. While the Special Committee considered appraisal reports containing proprietary commercial information, this court concludes its rationale is equally applicable to appraisal reports containing information about a taxpayer’s residence, absent a showing disclosure will likely cause serious injury to the taxpayer or any other person….

[B.] [F]loor plans of the house. Again, the court concludes plaintiffs have not established release of the floor plans “will likely cause a clearly defined and serious injury to any person or entity” under Rule 1:38-11. The court acknowledges plaintiffs’ interest in maintaining their privacy and the security of their home. The floor plans, while detailed, are on small scale and are difficult to read. Plaintiffs do not identify any depiction on the floor plans of security systems protecting the home. In addition, as noted above, the public interest in disclosure of appraisal reports submitted to, and used by, this court to determine true market value is significant and outweighs plaintiffs’ purported privacy interest in these documents….

[C.] [T]he expert’s detailed description of the interior and exterior characteristics of the home. The pages describe the history of the construction of the home, various materials used to build the house, finishes, ceiling heights, room features, amenities, and exterior improvements. In addition, the documents provide a detailed description of the tax year 2008 assessment and the zoning restrictions applicable to the property. Plaintiffs have not established the disclosure of this information is likely to cause a clearly defined and serious injury to them or others….

[D.] [T]he expert’s detailed discussion of how he formulated his opinion of the true market value of the property under the cost approach to valuation. The discussion includes details of the actual costs incurred by plaintiffs when constructing the home, the expert’s estimate of some costs, and his opinion of the hypothetical cost to replace the home. This page contain a description of the expert’s analysis of a type routinely submitted to this court to determine true market value under the cost approach. There is nothing in this document suggesting its disclosure is likely to cause a clearly defined and serious injury to plaintiffs or any other person….

[E.] [P]hotographs of the interior and exterior of the home, the roadways near the home, entrance gates to the property, an aerial photograph of the property marked “Microsoft Virtual Earth[,]” a map of the neighborhood in which the property is located marked “Microsoft Virtual Earth[,]” a tax map (which most certainly is a public document), a topographical map of the property, floor plans (with no interior walls or features depicted), a letter from an architect stating his opinion of the amount of the livable square footage of the home, floor plans with interior walls and features depicted, a summary of expenses incurred by plaintiffs when constructing the home, and a flood hazard map of the area surrounding the property.

These documents are typical of those submitted to this court with appraisal reports and do not contain confidential information. The only aspect of these documents that cause the court pause are the photographs of the interior of the home. Some of the photographs depict plaintiffs’ furniture, table settings, and other personal property, none of which is obviously embarrassing or of an intimate nature.

Those photographs, however, also depict features of the home. The appearance of plaintiffs’ personal property in the photographs is incidental to the depiction of the interior of the home. The court used the photographs when determining the true market value of the home, as the house’s characteristics are relevant to its value in the marketplace. While disclosure of the photographs will expose some of plaintiffs’ personal property to public view, the court concludes plaintiffs have not established disclosure is likely to cause a clearly defined and serious injury to them or others. The court, therefore, finds plaintiffs have not established good cause for sealing these documents under Rule 1:38-11….

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No Sealing of Photos and Plans of $20M, 29,000 Sq. Ft. House (with 55,000 Sq. Ft. of Improvements)

Vernon W. Hill and Shirley Hill own “what [they] describe as the largest single-family home in Southern New Jersey, consisting of 29,236 square feet of living space and an additional 55,543 square feet of improvements on a 7.21-acre portion of a 44-acre parcel. Its 2008 assessment was $20,814,500.

Completed in 2002, the home is built in an Italianate style and boasts a Barre granite facade, granite terraces, cascading waterfalls and several reflecting pools. There are six bedrooms and eleven full bathrooms. The walls and floor of the two-story foyer are marble. A fountain of black onyx marble anchors a circular marble staircase to the second floor. The living room is topped by a large circular dome with a Venetian plaster finish. There are three kitchens (two on the first floor and a full-size commercial kitchen in the basement), a gym, a library, two massage rooms, a hair salon, a billiards room, six storage or pantry rooms, laundry and trash rooms, a wine cellar, and two “viewing rooms” for admiring the landscape. The two-story “Lemon Room,” a sort of orangery for lemon trees, was added in 2006.

Hill, as I understand it, is a past chairman and CEO of Commerce Bancorp, and founder of Metro Bank UK; a Fortune article called him “the P.T. Barnum of banking.” (He was also a party to an interesting copyright / work-for-hire / injunction case, TD Bank N.A. v. Hill (3d Cir. 2019), related to a business book that he wrote.)

The Hills sued in N.J. Tax Court to challenge their 2008 tax assessment, and litigated the case up to the state’s intermediate appellate court, the Appellate Division. They lost, though it sounds like they could have lost more, had the assessor so argued: “[A]lthough the property was assessed at $20,814,500, [the tax] court determined its true market value to be $34,426,812 and, because the municipality did not file a counterclaim, the court did not raise the assessment on the property.”

Now, though, the financial dispute is over, and what’s left is the sealing dispute. The case apparently wasn’t supposed to be sealed:

Plaintiffs filed a complaint in this court challenging the tax year 2008 assessment. At the request of the parties, the court entered a consent protective order in which the parties agreed to maintain the confidentiality of documents and information exchanged during discovery. The consent protective order did not provide that documents and information filed with the court would be sealed from public disclosure pursuant to Rule 1:38-11…. [T]his court denied plaintiffs’ post-trial motion pursuant to Rule 1:38-11 to seal the trial court record ….

But the record appears to have been treated as sealed, so the Appellate Division case was marked “Record Impounded,” which drew the interest of Larry S. Loigman, a New Jersey lawyer who had litigated state public records cases before. He then intervened to unseal the case, and Monday Tax Court Judge Patrick DeAlmeida agreed (Hill v. Township of Moorestown, 2020 WL 116112 (N.J. Tax Ct.)), though the decision won’t take effect for 30 days, to give the parties the time to appeal.

Indeed, the court largely rejected even the Hills’ much-narrowed request (they “no longer request that the entire record be sealed,” but focus only on a few items). The court concluded that, under New Jersey law (and especially the New Jersey open court rules, drafted by the Supreme Court Special Committee on Public Access to Court Records), nearly everything in the record should be unsealed, except some personal e-mail addresses and information about the location of a security system on the property:

The Special Committee’s rejection of an exemption for appraisal reports submitted to this court highlights two salient points. First, the public interest in judicial resolution of local property tax appeals outweighs the privacy interests of the taxpayer to information in an appraisal report submitted to this court, at least in the context of proprietary business information. Second, public disclosure of appraisal reports submitted to this court is favored whenever the court uses the reports to facilitate resolution of the appeal, even when the reports are not admitted into evidence. This is significant because it is apparent to this court that the Special Committee’s discussion of appraisal reports was premised on the assumption the reports would be subject to public disclosure if admitted into evidence at trial….

Plaintiffs argue they have a constitutional right to privacy that includes the right to exclude the public from viewing their home and its contents and to prevent public disclosure of the details of their premises … [including the appraisal report that must be submitted with a challenge, and that contains] a detailed description of the property, interior and exterior photographs, and a floor plan…. While recognizing the Special Committee considered and rejected recommending excluding appraisal reports submitted in Tax Court matters from public disclosure, plaintiffs argue the Special Committee considered only those reports containing proprietary commercial information and not appraisal reports concerning the privacy interest of a taxpayer in their residence.

Plaintiffs also argue that … the information that is the subject of their motion is of limited value to the public, because this court issued a written decision explaining at length how it determined the true market value of plaintiffs’ home for tax year 2008 and most of the Hill Appeal record, including portions of the parties’ appraisal reports, is available for public disclosure.

In addition, plaintiffs submitted a certification asserting the construction of their home was “the subject of intense public scrutiny and media attention[,]” including “attempts by the paparazzi to invade the privacy of the home[,]” which is not wholly visible from the street.

Plaintiffs have hosted events at the home at which Governors and the Speaker of the House of Representatives were guests. On those occasions, a secret service detail and security personnel were required to secure the property. Plaintiffs have taken steps to ensure the privacy, safety, and security of the property for themselves and their guests by regularly requiring those who visit the property, including the appraisers involved in this matter, to sign a confidentiality agreement.

According to plaintiffs, “the interior home photographs and in depth descriptions” of the property “are extremely sensitive and private, and release could jeopardize not only the safety, health and security of [their] family, but of those honored guests [they] choose to invite into [the] home.” Plaintiffs recognize this court’s opinion affirming the tax year 2008 assessment contains a description of their home, but argue “the items [they] seek to protect are much more descriptive, personal and intrusive and could be used by someone wishing to breach the security systems [they have] taken steps to provide.”

Loigman argues this matter is a “garden variety” appeal of an assessment on a residential property, of the type routinely tried in the Tax Court without a sealed record. He argues the grand nature of plaintiffs’ home is insufficient to distinguish it from any other residential property and the potential injuries asserted by plaintiffs are speculative. He notes plaintiffs should have expected their decision to challenge the tax year 2008 assessment on their property would result in public scrutiny of their home, as is the case with any taxpayer who files a residential tax appeal.

Loigman argues the public has a right to know plaintiffs have not been treated with favoritism by the municipal tax assessor and how this court determined the true market value of plaintiffs’ home for local property tax purposes. He points out that although the property was assessed at $20,814,500, this court determined its true market value to be $34,426,812 and, because the municipality did not file a counterclaim, the court did not raise the assessment on the property….

The court almost entirely sided with Loigman, reasoning in particular:

[A.] [A]erial photographs of the property included in an appraisal report submitted at trial. The photographs each contain the word “Google” in the lower righthand corner, suggesting they were obtained from a commonly available resource.

The court concludes plaintiffs have not established disclosure of the photographs “will likely cause a clearly defined and serious injury to any person or entity” under Rule 1:38-11. While the court finds plaintiffs and their home have been the subject of intense public interest and scrutiny, there is nothing in the motion record establishing by a preponderance of the evidence how plaintiffs would be injured by release of the aerial photographs or that any injury would be serious or likely to occur.

Moreover, this court adopts the rationale of the Special Committee that the public interest in assuring the fairness of the process by which property taxes are levied outweighs the taxpayers’ privacy interest in personal information contained in appraisal reports submitted to this court. While the Special Committee considered appraisal reports containing proprietary commercial information, this court concludes its rationale is equally applicable to appraisal reports containing information about a taxpayer’s residence, absent a showing disclosure will likely cause serious injury to the taxpayer or any other person….

[B.] [F]loor plans of the house. Again, the court concludes plaintiffs have not established release of the floor plans “will likely cause a clearly defined and serious injury to any person or entity” under Rule 1:38-11. The court acknowledges plaintiffs’ interest in maintaining their privacy and the security of their home. The floor plans, while detailed, are on small scale and are difficult to read. Plaintiffs do not identify any depiction on the floor plans of security systems protecting the home. In addition, as noted above, the public interest in disclosure of appraisal reports submitted to, and used by, this court to determine true market value is significant and outweighs plaintiffs’ purported privacy interest in these documents….

[C.] [T]he expert’s detailed description of the interior and exterior characteristics of the home. The pages describe the history of the construction of the home, various materials used to build the house, finishes, ceiling heights, room features, amenities, and exterior improvements. In addition, the documents provide a detailed description of the tax year 2008 assessment and the zoning restrictions applicable to the property. Plaintiffs have not established the disclosure of this information is likely to cause a clearly defined and serious injury to them or others….

[D.] [T]he expert’s detailed discussion of how he formulated his opinion of the true market value of the property under the cost approach to valuation. The discussion includes details of the actual costs incurred by plaintiffs when constructing the home, the expert’s estimate of some costs, and his opinion of the hypothetical cost to replace the home. This page contain a description of the expert’s analysis of a type routinely submitted to this court to determine true market value under the cost approach. There is nothing in this document suggesting its disclosure is likely to cause a clearly defined and serious injury to plaintiffs or any other person….

[E.] [P]hotographs of the interior and exterior of the home, the roadways near the home, entrance gates to the property, an aerial photograph of the property marked “Microsoft Virtual Earth[,]” a map of the neighborhood in which the property is located marked “Microsoft Virtual Earth[,]” a tax map (which most certainly is a public document), a topographical map of the property, floor plans (with no interior walls or features depicted), a letter from an architect stating his opinion of the amount of the livable square footage of the home, floor plans with interior walls and features depicted, a summary of expenses incurred by plaintiffs when constructing the home, and a flood hazard map of the area surrounding the property.

These documents are typical of those submitted to this court with appraisal reports and do not contain confidential information. The only aspect of these documents that cause the court pause are the photographs of the interior of the home. Some of the photographs depict plaintiffs’ furniture, table settings, and other personal property, none of which is obviously embarrassing or of an intimate nature.

Those photographs, however, also depict features of the home. The appearance of plaintiffs’ personal property in the photographs is incidental to the depiction of the interior of the home. The court used the photographs when determining the true market value of the home, as the house’s characteristics are relevant to its value in the marketplace. While disclosure of the photographs will expose some of plaintiffs’ personal property to public view, the court concludes plaintiffs have not established disclosure is likely to cause a clearly defined and serious injury to them or others. The court, therefore, finds plaintiffs have not established good cause for sealing these documents under Rule 1:38-11….

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More Holes in the ‘Imminent Threat’ Story on Soleimani

NBC is reporting that President Donald Trump was mulling the hit on Iranian Maj. Gen. Qassem Soleimani seven months ago, with war hawks such as John Bolton urging him to go for it. This further erodes the administration’s claim that the assassination was done to stop an “imminent” attack on U.S. lives.

“According to five current and senior administration officials,” NBC reports, Trump gave the order in June 2019, “with the condition that Trump would have final signoff on any specific operation to kill Soleimani.” Trump said that signoff would come if any Americans were killed, their sources said, which “explains why assassinating Soleimani was on the menu of options that the military presented to Trump two weeks ago for responding to an attack by Iranian proxies in Iraq.” That proxy attack killed a U.S. contractor.

The strike was carried out on January 3. Secretary of State Mike Pompeo quickly and repeatedly attributed it not to retribution but to an alleged imminent threat to dozens (sometimes “hundreds”) of American lives.

The killing looked like something former National Security Advisor John Bolton would have hatced, but Bolton has been gone since September. Now it seems that Bolton’s imprint may have been on this operation after all. From NBC:

After Iran shot down a U.S. drone in June, John Bolton, Trump’s national security adviser at the time, urged Trump to retaliate by signing off on an operation to kill Soleimani, officials said. Secretary of State Mike Pompeo also wanted Trump to authorize the assassination, officials said.

Yesterday, Defense Secretary Mark Esper told Face the Nation that he knew of no “specific evidence” to support the claim that Iran was planning embassy attacks. Rep. Justin Amash (I–Mich.) has been blasting the Trump administration for continuing to push this story:

FREE MINDS

Anti-Catholic law in Montana comes to Supreme Court. When it considers Espinoza v. Montana Department of Revenue later this month, the U.S. Supreme Court “has the opportunity to do more than just settle the fate of one controversial tax credit; it could also junk Montana’s Blaine Amendment, finding it in violation of the Constitution’s religious-freedom and equal-protection clauses,” writes Nick Sibilla at The Atlantic. “In doing so, it would set a strong precedent against any law born of bigotry.”

The case concerns “a modest tax-credit scholarship program in Montana,” notes Sibilla, but it “could have major ramifications for educational-choice programs across America, which help nearly half a million students attend private schools.”

FREE MARKETS

Times editorial board lays out plans to “fortify” the FDA. On Sunday, the New York Times editorial board praised the Food and Drug Administration while worrying over its (lack of) leadership and admitting that it often fails. Its proposed solutions for “fortifying” the agency? Giving it even more power, of course. (Sigh.) To fix the FDA’s flaws, the paper claims, “the agency needs to be made stronger, not weaker.”

“Fortunately,” they write, “options for fortifying the F.D.A. abound”:

For instance, laws that would make it easier for regulators to police the cosmetics industry and to hold medical device companies to account have been floating through Congress for years. A group of former F.D.A. commissioners last year proposed an even bolder fix: Restore the agency’s autonomy by extracting it from the Department of Health and Human Services. The F.D.A.’s decisions used to be final, but for decades now they have been subject to layers of political interference. Making the agency independent, as the Federal Reserve and the Social Security Administration are, could help reverse that trend.

ELECTION 2020

Vermin Supreme won the New Hampshire Libertarian Party convention’s pick for the party’s presidential nomination. Heavy explains what this means:

The Libertarian Party hosts a series of primaries and caucuses where non-binding votes are cast, indicating a state party’s preference for its presidential candidate. These preferences are not binding and delegates who are sent to the national convention can vote for whichever candidate they prefer. New Hampshire had the first primary. This self-funded presidential preference primary was actually conducted by mail, with results announced on January 11….

So the voting of Vermin Supreme was a statement of preference, but it does not bind the delegates when they vote at the national convention on May 21-25, 2020 in Austin, Texas.

QUICK HITS

  • It was sunny and reached 70 degrees in Washington, D.C., yesterday. The White House then tweeted this picture:

Presumably, it’s a picture from earlier last week, when it did snow, although the conspiracy theorists of Twitter are having a field day:

  • Baylen Linnekin explores the FDA’s changes to food nutrition labels.

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