Despite Democrats’ like Alexandria Ocasio-Cortez’s and Elizabeth Warren’s insistence that Democrats’ are duty-bound to initiate impeachment proceedings against President Trump, party leaders like Nancy Pelosi and Steny Hoyer have made it clear that, ultimately, whether they decide to impeach Trump or not will be a political calculation. Notably, Pelosi’s shift toward signaling an openness to impeachment coincided with polling data indicating that public support for such a move had increased.
On Sunday, Majority Whip James Clyburn became the latest member of the Democratic Party’s leadership to confirm that the party is simply waiting for polling data to indicate that a majority of the public supports impeachment – something that, in all likelihood, won’t happen – before moving ahead with their plans.
During an interview with Jake Tapper on CNN’s “State of the Union,” Clyburn, the third-ranking Democrat in the House, said he believed that the Democrats would vote to impeach Trump “at some point,” but that Democrats must first succeed in building a case for impeachment and selling it to the public.
“What Nancy Pelosi is trying to do, and the rest of us in the House of Representatives, is developing a process to efficiently move on this issue so when we get to the vote, something she calls iron clad I call effective, that is why we are trying to take our time and do this right,” Clyburn said.
He added that House Democrats are not “particularly interested in the Senate,” but rather are waiting to “bring the public along.
“We do believe if we efficiently and effectively educate the public then we would have done our job and we can move on an impeachment vote,” Clyburn said.
Clyburn said that Mueller “has developed the grounds for impeachment,” but “the House has to determine the timing for impeachment, there’s a big difference.”
In the old Soviet Union, the Communists allegedly used1 the term “useful idiot” to describe Westerners whose naïve political views furthered the Soviet agenda, even though these Westerners didn’t realize that they were being exploited in such fashion. It is in this context that I confidently declare that American economists have been useful idiotsfor the green socialists pushing extreme climate change policies. The radical environmentalists were quite happy to embrace the economic concepts of “Pigovian negative externalities” and a carbon tax in the past, but now that it is impossible for economic science to endorse their desired agenda, the activists have discarded the entire field as hopelessly out of touch. Economists who still support a carbon tax and other climate “mitigation policies” should be aware of the bigger picture.
Using the UN’s Own Document to Defeat the Climate Change Agenda
I have been making this case for years. For example, back in 2014 I used the latest (and still most recent) UN Intergovernmental Panel on Climate Change (IPCC) report to show that the then-popular climate change target of 2 degrees Celsius of warming could not be justified by the research summarized in the report. In other words, I used the UN’s own report to show that the popular climate change “cures” would be worse than the disease.
Yet even though they had spent years berating the critics of government action as “climate deniers” who rejected the “consensus science,” in this case — once they realized that the economic models of climate change wouldn’t support aggressive intervention—the environmental activists all of a sudden began pointing out all the things that the UN-endorsed studies left out. Rather than summarizing the cutting edge knowledge on climate science and mitigation policies, the IPCC document turned into a bunch of misleading nonsense that would give ammunition to deniers.
Nobel Laureate Inconveniently Blows Up the Paris Agreement
Last fall, we had another demonstration of the chasm between the actual research and the media/political treatment: William Nordhaus won the Nobel Prize for his pioneering work on climate change, on the same weekend that the UN released a “special report” advising governments on how to try to limit global warming to as little as 1.5 degrees Celsius.
There was just one little problem: Nordhaus’ Nobel-winning work clearly showed that the UN’s goal was insane. According to his model, it would literally be better for governments around the world to do nothing about climate change, rather than enact policies limiting warming to 1.5°C. Rather than aiming for a 1.5°C target, Nordhaus’ most recent model runs indicated that the “optimal” amount of warming to allow was closer to 3.5°C. (To an outsider this might not seem like a huge discrepancy, but it is absolutely gigantic in the context of the climate change policy debate. Many activists would confidently predict that even 2.5°C of warming would spell disaster for our grandchildren.)
The Guardian’s Slam Dunk
Ah, but I got the best confirmation of my quixotic position just this month, when the Guardian ran an editorial with this subtitle (my highlighting):
Does everybody see that? The people at the Guardian already know what the policy answers are, without needing any help from the economists.
Market-friendly economists chiming in on the American political scene should stop being useful idiots for the green socialists. Whatever the possible merits of a theoretical carbon tax package – in which a regressive hike in energy prices is matched dollar-for-dollar with corporate income tax cuts, and decades of special-interest favoring regulations are thrown out the window in the zeal for efficiency – this is all a moot point. If market-friendly economists succeed in getting their readers to hold their noses and support a carbon tax, they will all learn quite quickly that the deal has been altered.
via ZeroHedge News http://bit.ly/2Ic2p6L Tyler Durden
The auction for the annual “Power Lunch with Warren” – where bidders compete to win a 45-minute lunch with the Oracle of Omaha – took place Friday night. And on Saturday, its organizers confirmed that the winning bidder – who has opted to remain anonymous, at least for now – will shell out $4,567,888 for the opportunity.
Not only is that a new record sum for the annual charity auction, but it surpassed the previous record by $1 million – or roughly 30%. Bidding starts at $25,000, and the auction has only finished below $2 million once since 2010, according to the AP.
Buffett’s annual “Power Lunch with Warren” auction benefits an organization called Glide, which offers free meals, health care and other services to homeless and low-income individuals in San Francisco, and is an organization that Buffett’s late wife used to support. It has brought it more than $30 million in donations over decades, as bids to the event have risen from just thousands of dollars to, now, millions. Gilde helps provide meals to the homeless in San Francisco, which are then ostensibly defecated on the streets of the city, as we observed in “Behold, The Shit Map“.
Glide Chief Executive Officer Karen Hanrahan told Bloomberg: “A lot of the trend lines around homelessness, poverty and inequality are getting worse. The lines outside of our doors keep getting longer. The funds that we’ve raised with Warren Buffett have allowed us to be just responsive to the community and responsive to the needs of the city.”
* * *
The lunch will be held at Smith & Wollensky, Buffett’s favorite steakhouse in New York City. The winner can bring up to seven friends (split eight ways, that $4.6 million price tag comes to roughly $575,000 a head).
However, as WSJ’s Jason Gay argues, if you’ve committed to shelling out all of this money, it might make more sense to go alone. After all, is it really worth taking the risk that one of you idiot friends might monopolize the conversation and waste all of your precious time with Buffett? Keep in mind that one previous winner, Ted Weschler, was offered a job at Berkshire by Buffett.
And though it’s tempting to dismiss this year’s winning bid as just one more example of the market froth that could potentially portend a turn in the business cycle, in at least one (albeit morbid) sense, we feel that hefty price tag can be justified. After all, nobody lives forever. And although Buffett is, by all accounts, in good health (despite subsisting on a diet of cheeseburgers and Coke), every ‘lunch with Warren’ is, well, one less ‘lunch with Warren’.
Plus, after a few relatively quiet years for Berkshire, so far, 2019 has been an eventful one for the firm: The Kraft Heinz accounting debacle and Berkshire’s decision to back Occidental’s bid for Anadarko were both major business stories. And Buffett hasn’t been stingy with granting interview requests, including a lengthy discussion at Berkshire’s Omaha offices with three reporters from the FT.
So whoever the winning bidder may be, at least he or she will have plenty to talk about.
via ZeroHedge News http://bit.ly/2EL7rGn Tyler Durden
All across the nation, students are being prodded like cattle into classrooms, and the one-size-fits-all approach is failing them.
There is a popular saying that “the proof is in the pudding.” In the first part of this article set, my colleague Mike Margeson spelled out the historical roots of the American schooling system. He clearly laid out the blueprint that men like Horace Mann used to build a system that does anything but “educates.” Factor in that trillions of dollars have been spent on schooling, and it makes it even harder to justify.
A Broken System
Yet we continue to hear the “Red for Ed” crowd scream for more funding. Here in the state of Indiana, the superintendent of public education is leading an assault on the state legislature for a meager 2 percent increase in state funding. Many educators are characterizing this as a decrease in funding! In no other walk of life would we continue to pour so many resources into a failed system. If you had any doubt about this after reading Part One, let me present you with some facts.
In what was one of many fiery speaking engagements, the late John Taylor Gatto delivered a line that has resonated with me as I have studied the effects the public schooling system has on children. In this particular speech, Gatto was recounting the story of Jaime Escalante, the educator who successfully taught calculus at Garfield High School in Los Angeles yet was forced to resign.
As he finishes describing the trials and fate of Escalante, Gatto explains that above racism and other forms of bigotry is the embedded idea that what really occurred was a deliberate attempt to stop genuine learning. Earlier in the speech, Gatto laid out a compelling case of how and why schooling is meant to keep citizens ignorant. This success at an inner city school was not going to be tolerated by the establishment. He implored his listeners to understand the real problem and to quit “fencing with shadows.”
Flushing Money Down the Drain
So what does this mean? Throughout history, compulsory schooling has consistently been viewed as not only progressive but also in need of reform. The most common method of reform has been to throw piles of money at the problem. According to the Department of Education’s (DOE) website, the DOE spent an estimated $69.4 billion in 2017. Compare that to the initial $2.9 billion ($23 billion adjusted for inflation) budgeted under the Elementary and Secondary School Act of 1965.
To put this into context, education spending as a percent of gross domestic product has gone from 2.6 percent in the 1950s to 6.1 percent as recently as 2010. This is just a look at federal spending; each state also allocates a portion of their budget to education, with California leading the way at over $72 million. Finally, we have seen a tremendous amount of private capital injected to help reform schools. Institutions such as the Bill and Melinda Gates Foundation have invested billions of dollars in education. All this spending must be yielding better results, right? Let’s take a look.
Contrary to what those in public education will tell you, the system is flush with cash, which generates very few positive results. Take New York as an example. The state was front and center in the reform battle during President Obama’s Race to the Top (RTT) initiative. Leading up to the controversial dash for cash, the city had been experiencing an education overhaul, including battles over charters and a knock-down fight with New York City Mayor Michael Bloomberg and his Board of Education chief, Joel Klein, and the powerful unions. The state was seeing an infusion of Wall Street cash backing charters, which were being throttled by state Democrats and union bosses.
In addition to the almost $700 million in RTT funds and the $61.4 million spent at the state level, the city of New York saw millions of dollars invested from groups like Democrats for Education Reform (DFER). So what are the results of these investments? According to Cornell University’s NYC Education Data program, less than half of all eighth graders in the state are proficient in English language arts and math. We see this same type of result across the country.
Indeed, these results do not stack up well internationally, either. A 2015 Organization for Economic Cooperation Development report shows just how far behind American students are falling. The average score for 15-year-olds in math, language, and science on the Program for International Student Assessment (PISA) test for the US was 470. Only Mexico (402), Chile (423) and Turkey (420) had lower scores. Thirty-one other nations had scores higher than the US, with Japan leading the way at 532.
Where to Look for Solutions
Why, in 2019, after all the money spent and all the reforms that have been instituted, are we still seeing such horrific results in our schools? The answer is much simpler than it has been made out to be: The system is broken. There is no remedy to fix this system. It is fundamentally flawed. The famous saying that you cannot fix a problem with the same mind that created it rings so true. So if reform will not work, what are we to do?
Again, the answer is simple: unschool. First, let’s be clear—charters and virtual schools are not desired long-term outcomes. They are soft variants of the current system, and while they may show growth in the short-term, in the long run, they still stifle learning due to government regulation. There are many methods for accomplishing the goal of unschooling. Some systems are already in place, such as homeschooling. Another great model is the Sudbury School. This is a democratic system of education that allows students the autonomy to determine their own paths of learning.
All across the nation, students are being prodded like cattle into classrooms, and the one-size-fits-all approach is failing them. They are bored and uninterested, and we blame them. We tell them and their parents that there is something medically wrong with them—that they need medication and counseling. This ought to weigh on the minds of every adult in America as cruel and abusive. Only systems that return power, and ultimately the desire to learn in children, will suffice. We need more educators like John Taylor Gatto to speak up and have the courage to buck the system. We need more leaders like Kerry McDonald and Dr. Peter Gray, who have led the charge in researching and promoting the unschooling model. Until that time, we will keep fencing with shadows.
via ZeroHedge News http://bit.ly/2Ir7hp1 Tyler Durden
More details about DeWayne Craddock, the Virginia Beach civil engineer who killed 12 people and wounded nearly half a dozen others (including a police officer) on Friday during “protracted gun battle” inside the municipal building where he had worked, have started to emerge over the weekend.
And from a series of interviews with those who had worked with Craddock, a vague understanding of what may have been his motive has started to emerge.
DeWayne Craddock
While Craddock had no history of violence at work or in his personal life, according to the New York Times, he had been involved in a violent incident in the workplace in recent weeks, and had been warned that disciplinary action would be taken.
City officials including City Manager David Hansen said Craddock “was still employed” by the city at the time of the attack. “He had a security pass like all employees had and he was authorized to enter the building.”
However, the Washington Post reported Sunday morning that Craddock had resigned from his position by email Friday morning, just hours before the shooting began.
Despite having no history of aggressive behavior, Craddock had begun acting strangely in recent weeks, even getting into “scuffles” with other works. He had even got into a violent altercation on city grounds, and was warned that disciplinary action would be taken.
Though his motives weren’t clear, his neighbors had told reporters on Saturday that Craddock’s wife had abruptly left him in the not-too-distant past.
When he stormed Building 2, the building where he had worked for more than a decade, helping to manage the city’s water and sanitary sewer system, Craddock was armed with two .45-calber hand guns, at least one of which was outfitted with a silencer, and loaded with extended magazines. Two more guns were later found inside his home.
Police have yet to comment on a possible motive, and the reasons behind Craddock’s sudden lurch toward staggering violence remain unclear.
via ZeroHedge News http://bit.ly/2JRID3L Tyler Durden
At tipping points like now, the steps we take in the present determine our future…
Bill was 48 when his wife stunned him with a request for divorce. Right up until that moment, he’d thought everything was fine.
He’d been pouring all his energy into his work to provide a very comfortable life for his wife and 2 children. But she was unhappy and fell out of love while Bill wasn’t paying attention to matters at home. He’d taken her for granted and forgot to be present for the most important people in his life, and to be grateful in the moment.
After she was gone, Bill was filled with emptiness and regret. All he wanted was to get her back, but it was too late. The damage had been done. What he had before was now in the past.
This parable of Bill’s loss serves as a reminder to all of us that, with all that’s awry in the world, it’s all too easy for those of us who are paying attention to gripe about everything that’s going wrong.
Yes, there are many trends that are headed on the wrong trajectory. But this tumultuous period of history also affords each of us the fantastic opportunity to contribute positively to the new future that’s on the way.
Please take this article an invitation to be grateful for what you have, and to notice just how wonderful our current lifestyle truly is. It won’t remain this way, as I’ll expound on in a moment.
So take the time to be grateful, hug those that you love, and feed the parts of your life that nourish you most. Maintaining perspective in times such as these is really important.
The truth is that we happen to be alive at a time of peak abundance and technological miracles. It’s never been easier or more comfortable to be a human. On nearly every dimension — longevity, dependable access to food, quality of shelter, personal safety, leisure time, intellectual pursuits, technological advancements — no previous generation of humans have enjoyed the excesses and luxuries that we currently do.
What are you going to do with that good fortune while it lasts?
The ‘Good Old Days’
Once I truly understood the role of net energy in delivering the miraculous abundance we experience, and then connected that to the impending decline of global fossil fuels, I came to a startling conclusion: These are the “good old days”.
This is as good as it gets. This is as easy and wonderful as it’s ever been for the average human on earth. And we’re now at (actually, likely past) the peak. Soon, everyone will fondly reminisce about this soon-to-be-bygone era:
“Remember when you could just hop on a plane and go anywhere in the world for the cost of just a day or two of your income?”
“Or how about walking into a grocery store, anytime of the year, and buying whatever fresh veggies you wanted — at any time of the day or night, no matter what season it was? Remember that?”
Today’s daily miracle of life is insanely good. Simply click a mouse button and in just a day or two the big, brown truck of happiness rolls up your driveway delivering goodies. Or blythely sleep through a painless surgical procedure. Maybe use GPS to navigate the worst Boston commute as you smoothly glide in a well-engineered personal chariot with 150 horses under the hood.
Face it, we have it better than true royalty did just 100 years ago.
But it won’t last. It can’t. The flows of energy that are required to maintain the complexity of our current system simply aren’t there.
These energy systems which make our current global economy run are still 80% reliant on fossil fuels. So are our current alternative energy systems — which are are still mined, refined, built and installed using fossil fuels. There are exactly zero full-cycle alternative energy systems that can be rebuilt using their own energy output. As Nate Hagens wisely says: they are not really renewable energy systems, but replaceable energy systems.
We could and we should be doing things very differently here at this moment in human history. But we’re acting like we always have; ignoring problems up until the point things start breaking badly. This is simply insane with nearly 8 billion people on the planet (quickly heading towards 10 billion) and yet we have no comprehensive plan for weaning ourselves off of fossil fuels.
Looking out at the next 20 years is downright frightening.
By 2040, we’ll be well past the point of Peak Oil if this model is correct (which is running three scenarios based on how much oil there might be, low med, and high):
The implications of oil’s inevitable and predictable decline are so profound that it’s a crime you’re only reading about it here and maybe one or two other “fringe” places on the net. Given its importance to everyone living on the planet today, it should be constant front page news everywhere.
Once we’re past peak production of oil, the entire suburban Ponzi experiment folds like a cheap card table, modern industrial agriculture becomes too expensive to continue, and the entirety of the financial system loses its motive power.
But, there’s no plan at all for addressing this. Not from any national government that I’ve seen. And I’ve been tracking this predicament for 15 years now.
Which brings me back to gratitude, which I think will be critical for dealing with the coming grief of losing our current comforts.
Having gratitude for what you do have is infinitely better for your mental well-being than worrying about what you don’t, or won’t, have. When I fly somewhere I’m grateful for the magical speed and ease of the technology. When I fill up my gas tank on my car, I’m grateful for the incredibly complex supply chains and financial systems that have to be in place for that to happen.
‘It’s not having what you want, it is wanting what you’ve got.’
~ Sheryl Crow
We really better appreciate all we have right now. Because our modern lifestyle just can’t last.
Don’t Be Like Bill
Bill made mistakes and now lives with regrets. Don’t be like Bill.
It’s perfectly clear that much of what we take for granted today is the product of multiple unsustainable systems all trundling towards the day when they fail.
We’re in ecological overshoot; which means the birds, bees and big game still around today may be extinct in our lifetime. And along with them, much of our food web.
Imagine the regret we’ll feel then.
We’re also in debt overshoot; which means that a future of economic austerity awaits as companies and households start to fail in large number. Whether the killing blow comes via deflation or inflation is academic at this point. The end result will be the same: less prosperity and opportunity for all — because we splurged today without thought for how we’d pay tomorrow’s bills when they arrived.
Imagine our regret then.
We’re burning through the last dregs of high-net energy oil. And we’re in population overshoot, too. Replacing that oil and feeding so many of ourselves will take energy — lots and lots of energy — but where will it come from? We don’t yet know at this point. And we’re not even yet admitting to ourselves that we have a problem. A big problem. So we’re highly likely to slam head-first into the biggest global ever energy crisis modern man has ever seen.
Imagine our regret when that day arrives.
What Happens Next
While all this probably sounds depressing, it’s doesn’t have to be.
It’s just how things stand today. But there is still time to improve our destiny, at least, at the individual level.
Let this wake-up call become your invitation to bring your very best self to the game. You can either choose to be engaged in the reformation of life on this planet, or be carried along by the changes as they emerge (which will probably be far less enjoyable than the former option).
The true opportunity here is for each of us to appreciate that this is the one and only shot we’re going to get at life, as far as we know. So make of it what you can.
That’s the invitation.
Our ‘tribe’ here at Peak Prosperity is full of people actively engaged in answering this invitation by bringing their best selves. It really is community of high-achieving quality thinkers and doers unlike any other. I invite you to join us.
Together, we’re facing these multiple problems and predicaments head on, and using them as motivation to align ourselves and our actions with the world as it truly exists — not as we wish it were.
It’s not easy. But then again nothing worthwhile ever is.
In Part 2: Preparing For The Reckoning we forecast what is most likely to happen next as the current policies in play begin failing. How few years left of status quo can we enjoy before the repercussions become too painful to ignore?
What can we each do today to improve our own destiny tomorrow?
At tipping points like now, our future is dependent on the steps we take in the present.
As Tesla Model S vehicles now start to age beyond a few years, it seems that more and more of them are winding up somehow catching fire. The latest example comes from Belgium, where a Tesla Model S caught fire and completely burned down while plugged in at a Supercharger in Antwerp. Dutch media is reporting that the vehicle caught fire “a little while” after starting to charge, according to electrek:
“The driver of the car had parked it at a so-called ‘Supercharger’, a fast charging station, at the Novotel at Luithagen-Haven. When he returned a little later, his Tesla and the supercharger were lit up. Possibly there was a technical problem before charging.”
Firefighters were so concerned about the vehicle reigniting that they lifted the vehicle up with a crane and submerged it into a pool of water, which is usually the worst possible idea when dealing with a chemical fire:
“Moments later, the fire was extinguished by the fire department by immersing the car in a container with water. To ensure that the fire does not flare up again, the Tesla, or what remains of it, remained in the water for the rest of the night.”
Tesla did not immediately return a request for comment. Recall, in 2016 a Tesla Model S also caught fire while at a Supercharger station in Norway. Interestingly enough, in that case, firefighters were told “not to use water” to try and extinguish the battery fire.
And even the pro-Tesla blog at electrek can’t help but make an astute observation: “It seems like there have been many Tesla fires lately and they seem to all be Model S vehicles. We know of at least 4 in the past 2 months.”
As a result of the 2016 fire, Tesla wound up pushing a software update and blaming a “short circuit” in the the car. Tesla also recently has pushed a software update as a result of numerous vehicles appearing to spontaneously combust – one recently in China, and another in Hong Kong. We hope that this update is more effective than the one issued in 2016.
And that’s not the only piece of bad news for Tesla this weekend. Investigators have been probing a fatal crash in Florida that killed a pedestrian back in April after blowing through an intersection.
22-year-old Benavides Leon Naibel died after the impact of the crash threw her about 20 feet into the woods at the intersection. 27-year-old Angulo Dillion, who was with her, was in serious condition. A Monroe County Sheriff’s Office deputy was the first to find them.
Until this weekend, authorities were unsure as to whether or not the car’s Autopilot function had been engaged at the time of the accident, when the vehicle failed to stop at a 3 way stop sign intersection.
While investigators told the FL Keys News that the investigation into Autopilot was still ongoing, the article notes that driver George McGee had dropped his phone, looked down and subsequently ran the stop sign. The driver later told Monroe County Deputy Joel Torres that the car was on “cruise control” when he dropped the phone.
via ZeroHedge News http://bit.ly/2wEb4tf Tyler Durden
The Dawoodi Bohra are a Shia Muslim sect; many of its members believe that, among other things, boys and girls must be circumcised. The federal government charged some Dawoodi Bohra under the federal ban on female genital mutilation; one of the defendants’ main defenses is that they engaged only in symbolic nicking or scraping that left no lasting damage to the girls, and that they should therefore be exempted under the Federal Religious Freedom Restoration Act from the federal statute.
But this defense hasn’t yet been explored by the court, because the court instead held that the federal female genital mutilation ban exceeds the federal government’s enumerated powers; if such a practice is to be restricted (with or without a religious exemption for relatively harmless symbolic action), it must be done by the states, or through a federal statute that contains a suitable basis for federal jurisdiction (such as travel across state boundaries). The court therefore dismissed most of the charges in the federal indictment The Justice Department initially filed a notice of appeal, but, then dropped the appeal:
On further examination, the Department reluctantly agreed with [the court’s] determination, provided notice to Congress under 28 U.S.C. § 530D that it would not challenge the district court’s ruling, and proposed a statutory amendment that the Department urged Congress to enact.
When the Justice Department’s plans were announced, the House of Representatives intervened to defend the constitutionality of the statute, and Friday the Justice Department filed its opposition. Much of the debate has to do with whether the House generally has the statutory authority to intervene to defend federal statutes that the Justice Department has chosen not to defend. But a key part specifically has to do with whether the House can try to reinstate a federal prosecution that the federal prosecutors have chosen to drop:
Let us be clear at the outset what power the House of Representatives asserts: the House claims that it is entitled to keep alive a criminal prosecution that the Executive Branch no longer wishes to pursue on appeal. Never before has either House of Congress attempted, or any court authorized, such an exercise of core executive power. Article II vests executive power in the President, U.S. Const. Art. II, § 1, cl. 1, and requires that he “take Care that the Laws be faithfully executed,” id. § 3. Under our separation of powers, Congress—let alone a single House—cannot intervene and assume control of litigation, simply because it disagrees with the manner in which the Executive has chosen to execute the laws.
Here, the Department of Justice initially pursued a prosecution of eight defendants involved in female genital mutilation, because it views that practice as heinous and reprehensible. The district court, however, dismissed the female-genital- mutilation charges as unconstitutional on the ground that the relevant statute, 18 U.S.C. § 116(a)—which was passed in 1996, before the Supreme Court’s decision in United States v. Morrison, 529 U.S. 598 (2000)—lacks any jurisdictional hook to interstate commerce. On further examination, the Department reluctantly agreed with that determination, provided notice to Congress under 28 U.S.C. § 530D that it would not challenge the district court’s ruling, and proposed a statutory amendment that the Department urged Congress to enact. That is precisely how the Branches should interact in a system that separates legislative from executive power.
At that point, the House (and Senate) were free to make simple amendments to the statute that would cure the constitutional defect and permit future federal prosecution of those who commit female genital mutilation. Given the broad condemnation of this abhorrent practice, it is inexplicable that the House has not acted on the Department’s proposal.
Instead, the House has chosen to try the one thing it plainly may not do: step into the shoes of the Executive, assume control of this criminal prosecution, and litigate on behalf of the United States. The Constitution entrusts that responsibility to the Executive alone. If the defendants in this case are to go to prison, it should not be at the behest of three members of the House’s Bipartisan Legal Advisory Group. [Footnote: The Bipartisan Legal Advisory Group consists of five members: the Speaker of the House, the Majority and Minority Leaders, and the Majority and Minority Whips. Here, the Speaker, Majority Leader, and Majority Whip voted in favor of seeking intervention; the [Minority] Leader and Minority Whip voted against it.] This Court should therefore deny the House’s motion for intervention, which would end this appeal and would leave the question where the Constitution places it: whether the House wishes to exercise its legislative power and amend this statute….
The Constitution vests the prosecutorial power of the United States in the Executive Branch. See U.S. Const. art. II, §§ 1, 3. Accordingly, the “Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U.S. 683, 693 (1974). The House’s intervention motion attempts to carve out a role for the Legislative Branch from that constitutionally guarded prosecutorial power. No court has ever permitted the Legislative Branch to do what the House requests here—extend a federal criminal prosecution that the United States has determined no longer to pursue on appeal— and its request is unsound….
The proper role of the House in ensuring the viability of future prosecutions for female genital mutilation is its participation in the bicameralism and presentment process for enacting new laws. The Department has proposed legislation that would amend Section 116(a) to require proof of a nexus to interstate commerce, thereby eliminating the constitutional concerns that the district court identified. Congress should expeditiously adopt that proposal. But the House cannot instead take the reins of a criminal prosecution….
The House acknowledges that, because this case involves a federal criminal prosecution, it “is highly unusual” even among the rare cases addressing legislative intervention. Indeed, the United States is not aware of any court that has ever permitted anyone to intervene to defend the constitutionality of a federal criminal statute. Cf. Sanger v. Reno, 966 F. Supp. 151, 166 (E.D.N.Y. 1997) (declining to add House Members as defendants in suit challenging constitutionality of criminal prohibition, in part because criminal prosecutions are “entirely in the hands of the executive branch”). No law or rule expressly allows intervention in criminal cases, and courts have permitted intervention only to protect third-party interests distinct from the prosecution itself. Any such extratextual intervention authority cannot encompass the House’s efforts to continue this criminal prosecution….
Although styled as a motion to intervene, the House’s motion in effect seeks to substitute the House as the appellant, challenging an order dismissing criminal charges that the United States has determined not to appeal. But it is a “well settled” rule “that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” “A ‘party’ to litigation is ‘one by or against whom a lawsuit is brought.’ ” The only parties to a federal criminal prosecution are the defendant (the person “against whom” charges are brought) and the United States (the entity bringing the charges). And only “the United States” may appeal an order dismissing charges in a federal indictment.
The House does not contend, nor could it, that it represents the United States in this case. The Constitution vests the prosecutorial power in the Executive Branch, not the Legislative Branch. See U.S. Const. art. II, § 3 (duty to “take Care that the Laws be faithfully executed”); United States v. Armstrong, 517 U.S. 456, 467 (1996) (calling the “power to prosecute” “one of the core powers of the Executive Branch”). Just as no history exists of “any private prosecution of federal crimes” in the United States, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 n.2 (1987) (Scalia, J., concurring in the judgment), no history exists of any congressional prosecution of federal crimes.
To the contrary, “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” Nixon, 418 U.S. at 693. Allowing a legislative entity to do so would permit the “legislative usurpation[]” of executive power, which in the Framers’ view, “the people ought to indulge all their jealousy and exhaust all their precautions” to prevent. Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) (quoting The Federalist No. 48, at 333 (Madison) (J. Cooke ed. 1961)). The House therefore lacks any authority to maintain this appeal on either the United States’s behalf or its own….
I find this separation-of-powers analysis pretty persuasive, though perhaps the House’s reply may bring me around. (The House’s original motion only talked about the statutory question, as it was entitled to do; now that the Justice Department has brought up the constitutional question, the reply brief is the right place for the House to respond to it.)
I generally sympathize with the view that, when the Justice Department or a state Attorney General declines to defend a federal or state statute in court, there ought to be some means for someone else to defend the legislative will (or, for an initiative, the popular will). In some situations, that might well be possible: For instance, if I sue in federal court to challenge a state statute, and the state decides to concede the statute’s unconstitutionality, the case remains in court and the judge still has a legal decision to make: It might make sense for legislators, for instance, to file an amicus brief urging the court to reject my challenge, even though the state and I agree. The state has no unilateral power to enter a judgment in my favor; that is up to the court.
But I think the federal Justice Department does, under federal separation of powers principles, have the unilateral power to choose not to seek an indictment. It likewise, I think, have the power to choose not to try to reinstate an indictment that a district court has dismissed.
I don’t think the matter is open and shut, and there’s been some debate about the degree to which the federal government’s ability to stop prosecuting a case, by dismissing charges, can be constrained; Federal Rule of Criminal Procedure 48(a) allows such dismissals only “by leave of court,” but courts have concluded that this judicial supervision must be quite limited, precisely because of the separation of powers:
[U]nder our system of separation of powers, the decision whether to prosecute, and the decision as to the charge to be filed, rests in the discretion of the Attorney General or his delegates, the United States Attorneys.
Still, on balance it seems to me that Congress—and certainly one branch of Congress—cannot step in to try to reinstate a federal prosecution. To quote a Seventh Circuit decision in favor of a prosecutor’s power to drop charges,
The government wants to dismiss the civil rights count with prejudice, and that is what Bitsky wants as well. The district judge simply disagrees with the Justice Department’s exercise of prosecutorial discretion. As he explained in his response to the petition for mandamus, he thinks the government has exaggerated the risk of losing at trial: “the evidence was strong and conviction extremely likely.” The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.
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Congressional Republicans have set their sights on former FBI Director James Comey and former CIA Director John Brennan for their roles in the Trump-Russia ‘witch hunt’ that may have been conducted illegally using flimsy evidence.
In particular, GOP lawmakers along with President Trump are looking to blame the two former intelligence chiefs over the use of the highly controversial Steele report – created by former UK spy Christopher Steele .
The dossier, a shadowy document that makes a series of salacious allegations about Trump, has long been a flashpoint for Republicans.
Some Republicans allege that FBI investigators relied too heavily on it to obtain a Foreign Intelligence Surveillance Act (FISA) warrant on former Trump campaign aide Carter Page. Some of the allegations in the dossier have been verified, while others were proven false or remain unsubstantiated. –The Hill
In May, a dispute erupted over whether Comey or Brennan pushed to include the Steele Dossier in the US intelligence community assessment (ICA) on Russian interference. According to Fox News, an email chain exists indicating that Comey told his subordinates that Brennan insisted on the dossier’s inclusion, while a former CIA official “put the blame squarely on Comey,” according to the report.
According to former Rep. Trey Gowdy (R-SC), communications between Comey and Brennan are the key to unlocking the decisions behind the dossier.
“Whoever is investigating this, tell them to look for emails between Brennan and Comey in December of 2016,” Gowdy told Fox News‘s Sean Hannity last month.
Republican lawmakers took Gowdy’s cue.
“Comey and Brennan have made a lot of statements, some under oath, about the origins of the Trump Russia investigation, the timing and role of the Steele dossier and reasons for surveillance of Trump campaign officials. As I’ve been saying for awhile now, some of that is inconsistent with the contents of classified documents and the sworn testimony of other witnesses,” Rep. John Ratcliffe (R-Texas), a member of the Judiciary Committee, told The Hill.
“And more recently, some of what Brennan and Comey have been saying is now inconsistent with one another. As Attorney General Barr said this morning, it just doesn’t jive. Someone isn’t telling the truth,” he continued. –The Hill
Attorney General William Barr has placed Connecticut US attorney John Duham in charge of reviewing the origins of the Trump-Russia investigation, while President Trump gave Barr complete power to declassify information linked to the investigation – leading Democrats to suggest that Trump would ‘pursue a political agenda’ while investigating the politicized ‘witch hunt’ against him.
“Selectively declassifying sources and methods in order to serve a political agenda will make it harder for the intelligence community to do their jobs protecting this country from those who wish to do us harm,” said Senate Intelligence Vice Chairman Mark Warner (D-VA).
Perhaps Congressional Republicans will focus next on Joseph Mifsud – the Maltese professor and Clinton ally who ‘seeded’ the rumor that Russia had dirt on Hillary Clinton.
via ZeroHedge News http://bit.ly/2IhJGXF Tyler Durden
The Dawoodi Bohra are a Shia Muslim sect; many of its members believe that, among other things, boys and girls must be circumcised. The federal government charged some Dawoodi Bohra under the federal ban on female genital mutilation; one of the defendants’ main defenses is that they engaged only in symbolic nicking or scraping that left no lasting damage to the girls, and that they should therefore be exempted under the Federal Religious Freedom Restoration Act from the federal statute.
But this defense hasn’t yet been explored by the court, because the court instead held that the federal female genital mutilation ban exceeds the federal government’s enumerated powers; if such a practice is to be restricted (with or without a religious exemption for relatively harmless symbolic action), it must be done by the states, or through a federal statute that contains a suitable basis for federal jurisdiction (such as travel across state boundaries). The court therefore dismissed most of the charges in the federal indictment The Justice Department initially filed a notice of appeal, but, then dropped the appeal:
On further examination, the Department reluctantly agreed with [the court’s] determination, provided notice to Congress under 28 U.S.C. § 530D that it would not challenge the district court’s ruling, and proposed a statutory amendment that the Department urged Congress to enact.
When the Justice Department’s plans were announced, the House of Representatives intervened to defend the constitutionality of the statute, and Friday the Justice Department filed its opposition. Much of the debate has to do with whether the House generally has the statutory authority to intervene to defend federal statutes that the Justice Department has chosen not to defend. But a key part specifically has to do with whether the House can try to reinstate a federal prosecution that the federal prosecutors have chosen to drop:
Let us be clear at the outset what power the House of Representatives asserts: the House claims that it is entitled to keep alive a criminal prosecution that the Executive Branch no longer wishes to pursue on appeal. Never before has either House of Congress attempted, or any court authorized, such an exercise of core executive power. Article II vests executive power in the President, U.S. Const. Art. II, § 1, cl. 1, and requires that he “take Care that the Laws be faithfully executed,” id. § 3. Under our separation of powers, Congress—let alone a single House—cannot intervene and assume control of litigation, simply because it disagrees with the manner in which the Executive has chosen to execute the laws.
Here, the Department of Justice initially pursued a prosecution of eight defendants involved in female genital mutilation, because it views that practice as heinous and reprehensible. The district court, however, dismissed the female-genital- mutilation charges as unconstitutional on the ground that the relevant statute, 18 U.S.C. § 116(a)—which was passed in 1996, before the Supreme Court’s decision in United States v. Morrison, 529 U.S. 598 (2000)—lacks any jurisdictional hook to interstate commerce. On further examination, the Department reluctantly agreed with that determination, provided notice to Congress under 28 U.S.C. § 530D that it would not challenge the district court’s ruling, and proposed a statutory amendment that the Department urged Congress to enact. That is precisely how the Branches should interact in a system that separates legislative from executive power.
At that point, the House (and Senate) were free to make simple amendments to the statute that would cure the constitutional defect and permit future federal prosecution of those who commit female genital mutilation. Given the broad condemnation of this abhorrent practice, it is inexplicable that the House has not acted on the Department’s proposal.
Instead, the House has chosen to try the one thing it plainly may not do: step into the shoes of the Executive, assume control of this criminal prosecution, and litigate on behalf of the United States. The Constitution entrusts that responsibility to the Executive alone. If the defendants in this case are to go to prison, it should not be at the behest of three members of the House’s Bipartisan Legal Advisory Group. [Footnote: The Bipartisan Legal Advisory Group consists of five members: the Speaker of the House, the Majority and Minority Leaders, and the Majority and Minority Whips. Here, the Speaker, Majority Leader, and Majority Whip voted in favor of seeking intervention; the [Minority] Leader and Minority Whip voted against it.] This Court should therefore deny the House’s motion for intervention, which would end this appeal and would leave the question where the Constitution places it: whether the House wishes to exercise its legislative power and amend this statute….
The Constitution vests the prosecutorial power of the United States in the Executive Branch. See U.S. Const. art. II, §§ 1, 3. Accordingly, the “Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” United States v. Nixon, 418 U.S. 683, 693 (1974). The House’s intervention motion attempts to carve out a role for the Legislative Branch from that constitutionally guarded prosecutorial power. No court has ever permitted the Legislative Branch to do what the House requests here—extend a federal criminal prosecution that the United States has determined no longer to pursue on appeal— and its request is unsound….
The proper role of the House in ensuring the viability of future prosecutions for female genital mutilation is its participation in the bicameralism and presentment process for enacting new laws. The Department has proposed legislation that would amend Section 116(a) to require proof of a nexus to interstate commerce, thereby eliminating the constitutional concerns that the district court identified. Congress should expeditiously adopt that proposal. But the House cannot instead take the reins of a criminal prosecution….
The House acknowledges that, because this case involves a federal criminal prosecution, it “is highly unusual” even among the rare cases addressing legislative intervention. Indeed, the United States is not aware of any court that has ever permitted anyone to intervene to defend the constitutionality of a federal criminal statute. Cf. Sanger v. Reno, 966 F. Supp. 151, 166 (E.D.N.Y. 1997) (declining to add House Members as defendants in suit challenging constitutionality of criminal prohibition, in part because criminal prosecutions are “entirely in the hands of the executive branch”). No law or rule expressly allows intervention in criminal cases, and courts have permitted intervention only to protect third-party interests distinct from the prosecution itself. Any such extratextual intervention authority cannot encompass the House’s efforts to continue this criminal prosecution….
Although styled as a motion to intervene, the House’s motion in effect seeks to substitute the House as the appellant, challenging an order dismissing criminal charges that the United States has determined not to appeal. But it is a “well settled” rule “that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” “A ‘party’ to litigation is ‘one by or against whom a lawsuit is brought.’ ” The only parties to a federal criminal prosecution are the defendant (the person “against whom” charges are brought) and the United States (the entity bringing the charges). And only “the United States” may appeal an order dismissing charges in a federal indictment.
The House does not contend, nor could it, that it represents the United States in this case. The Constitution vests the prosecutorial power in the Executive Branch, not the Legislative Branch. See U.S. Const. art. II, § 3 (duty to “take Care that the Laws be faithfully executed”); United States v. Armstrong, 517 U.S. 456, 467 (1996) (calling the “power to prosecute” “one of the core powers of the Executive Branch”). Just as no history exists of “any private prosecution of federal crimes” in the United States, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 n.2 (1987) (Scalia, J., concurring in the judgment), no history exists of any congressional prosecution of federal crimes.
To the contrary, “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” Nixon, 418 U.S. at 693. Allowing a legislative entity to do so would permit the “legislative usurpation[]” of executive power, which in the Framers’ view, “the people ought to indulge all their jealousy and exhaust all their precautions” to prevent. Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) (quoting The Federalist No. 48, at 333 (Madison) (J. Cooke ed. 1961)). The House therefore lacks any authority to maintain this appeal on either the United States’s behalf or its own….
I find this separation-of-powers analysis pretty persuasive, though perhaps the House’s reply may bring me around. (The House’s original motion only talked about the statutory question, as it was entitled to do; now that the Justice Department has brought up the constitutional question, the reply brief is the right place for the House to respond to it.)
I generally sympathize with the view that, when the Justice Department or a state Attorney General declines to defend a federal or state statute in court, there ought to be some means for someone else to defend the legislative will (or, for an initiative, the popular will). In some situations, that might well be possible: For instance, if I sue in federal court to challenge a state statute, and the state decides to concede the statute’s unconstitutionality, the case remains in court and the judge still has a legal decision to make: It might make sense for legislators, for instance, to file an amicus brief urging the court to reject my challenge, even though the state and I agree. The state has no unilateral power to enter a judgment in my favor; that is up to the court.
But I think the federal Justice Department does, under federal separation of powers principles, have the unilateral power to choose not to seek an indictment. It likewise, I think, have the power to choose not to try to reinstate an indictment that a district court has dismissed.
I don’t think the matter is open and shut, and there’s been some debate about the degree to which the federal government’s ability to stop prosecuting a case, by dismissing charges, can be constrained; Federal Rule of Criminal Procedure 48(a) allows such dismissals only “by leave of court,” but courts have concluded that this judicial supervision must be quite limited, precisely because of the separation of powers:
[U]nder our system of separation of powers, the decision whether to prosecute, and the decision as to the charge to be filed, rests in the discretion of the Attorney General or his delegates, the United States Attorneys.
Still, on balance it seems to me that Congress—and certainly one branch of Congress—cannot step in to try to reinstate a federal prosecution. To quote a Seventh Circuit decision in favor of a prosecutor’s power to drop charges,
The government wants to dismiss the civil rights count with prejudice, and that is what Bitsky wants as well. The district judge simply disagrees with the Justice Department’s exercise of prosecutorial discretion. As he explained in his response to the petition for mandamus, he thinks the government has exaggerated the risk of losing at trial: “the evidence was strong and conviction extremely likely.” The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.
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