House Committee Can Get Trump Tax Returns

The introduction and conclusion from today’s long D.C. Circuit decision in Committee on Ways & Means v. U.S. Dep’t of Treasury by Judge David Sentelle, joined by Judge Robert Wilkins and in large part by Judge Karen LeCraft Henderson:

The Chairman of the United States House of Representatives Committee on Ways and Means filed a statutory request for documents from the Department of the Treasury related to then-President Donald J. Trump and related entities. Treasury initially objected to the request, and the Committee filed this lawsuit. After a change of administrations, Treasury acquiesced, stating that it intended to comply with the request. In the meantime, the Trump Parties intervened in the action. The district court ruled in favor of the Committee. Intervenors appeal. For the reasons set forth below, we affirm….

The 2021 Request seeks information that may inform the United States House of Representatives Committee on Ways and Means as to the efficacy of the Presidential Audit Program, and therefore, was made in furtherance of a subject upon which legislation could be had. Further, the Request did not violate separation of powers principles under any of the potentially applicable tests primarily because the burden on the Executive Branch and the Trump Parties is relatively minor. Finally, § 6103(f)(1) is not facially unconstitutional because there are many circumstances under which it can be validly applied, and Treasury’s decision to comply with the Request did not violate the Trump Parties’ First Amendment rights. We affirm.

As to privacy, the court notes:

There is no constitutional guarantee to the privacy of tax returns. Rather, the privacy of tax returns is a creature of statute, the same statute that authorizes the Chairman to request this information.

And, as to the First Amendment:

Finally, the Trump Parties contend that Treasury’s intent to comply with the Chairman’s Request violates their First Amendment rights because Treasury is politically motivated . Those being investigated by Congress do not lose the protections of the First Amendment. To state a claim for First Amendment retaliation, the Trump Parties must allege that they engaged in protected conduct, that the government took retaliatory action capable of deterring another from the same protected activity, and that there is a causal link between the two. The improper motive must be a but-for cause of the government action, “meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.”

The Trump Parties have failed to state a claim for the reason that they cannot show that Treasury’s decision to comply with the 2021 Request would not have happened absent a retaliatory motive. The language of § 6103(f)(1) is mandatory. The statute provides that “the Secretary shall furnish” the requested information to the Committee upon written request. When the Committee makes a request that is within its authority to make, i.e., within Congress’s investigative power, the Secretary does not have a choice as to whether to provide the information. Where, as here, the Executive Branch comes to the conclusion that a § 6103(f)(1) request is valid, it has no choice but to comply with the request. Any motive, retaliatory or otherwise, becomes irrelevant. Therefore, the Trump Parties’ First Amendment claim, like their other claims, fails.

Judge Henderson had a different approach to the separation-of-powers question, though she agreed there was no separation of powers violation.

The post House Committee Can Get Trump Tax Returns appeared first on Reason.com.

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Sen. Lindsey Graham: States Should Decide On Same-Sex Marriage

Sen. Lindsey Graham: States Should Decide On Same-Sex Marriage

Authored by Matthew Vadum via The Epoch Times (emphasis ours),

Sen. Lindsey Graham (R-S.C.) said Aug. 7 that states, not the federal government, should decide whether same-sex marriage should be legally recognized.

Sen. Lindsey Graham (R-S.C.) speaks to reporters on Capitol Hill in Washington on March 5, 2021. (Alex Wong/Getty Images)

Graham’s comments came during a panel discussion on CNN’s “State of the Union” after HR 8404, the proposed Respect for Marriage Act, passed the House of Representatives 267-157 on July 19 with the support of 47 Republicans. The bill is pending in the 50/50 Senate where it is expected to enjoy the support of Sens. Rob Portman (R-Ohio) and Susan Collins (R-Maine.)

Among the Republicans voting for the bill were House Republican Conference Chair Elise Stefanik (R-N.Y.) and Scott Perry (R-Penn.), who chairs the conservative House Freedom Caucus. Voting no were Minority Leader Kevin McCarthy (R-Calif.) and Minority Whip Steve Scalise (R-La.).

The bill would repeal the Defense of Marriage Act (DOMA), a 1996 law that defined marriage as the union of one man and one woman and allowed states to refuse to accept same-sex marriages recognized under other states’ laws. After then-President Bill Clinton signed DOMA, about 40 states banned same-sex marriage. DOMA was found to be unconstitutional by the Supreme Court in Obergefell v. Hodges (2015), a ruling that held that the Fourteenth Amendment requires states to license and recognize same-sex marriage.

The new bill would also codify the Obergefell ruling.

Respect for Marriage Act supporters say the bill is needed because the Supreme Court’s June 24 decision overturning 49-year-old abortion precedent Roe v. Wade potentially opened the door to the future reversal of Obergefell by the court.

Although Graham said he did not believe the Supreme Court would actually reverse Obergefell, neither the court nor the federal government should be deciding the issue of same-sex marriage for the entire nation.

“I’ve been consistent. I think states should decide the issue of marriage and states should decide the issue of abortion,” Graham told CNN.

“I have respect for South Carolina. South Carolina voters here I trust to define marriage and to deal with [the] issue of abortion and not nine people on the court. That’s my view.”

The proposed Respect for Marriage Act is a distraction from the problems Americans are really facing, Graham suggested.

“We’re talking about things that don’t happen because you don’t want to talk about inflation, you don’t want to talk about crime,” Graham said, with Sen. Richard Blumenthal (D-Conn.) at his side.

Blumenthal said the Obergefell ruling must be codified because “there’s a real danger of it being overturned” by the high court.

“This Supreme Court has indicated it has a hit list, beginning with marriage equality, contraception, possibly others as well, Loving v. Virginia,” the senator said.

In Loving, the Supreme Court ruled in 1967 that laws forbidding interracial marriage violate the Fourteenth Amendment.

In his concurring opinion (pdf) in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade, Justice Brett Kavanaugh specifically wrote that the Dobbs ruling “does not threaten or cast doubt” on Loving or Griswold v. Connecticut, a 1965 Supreme Court decision recognizing the right to use contraceptives.

In a separate concurring opinion, Justice Clarence Thomas said the court, now that it has overturned Roe, should also reconsider its “demonstrably erroneous” rulings in cases such as Obergefell and Griswold. Thomas did not identify Loving as a precedent that should be overturned.

Tyler Durden
Tue, 08/09/2022 – 18:05

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Texas Governor Buses More Illegal Immigrants Into New York – Mayor Calls It ‘Horrific’

Texas Governor Buses More Illegal Immigrants Into New York – Mayor Calls It ‘Horrific’

The despicable nature of the leftist political response to illegal immigration cannot be understated.  They were perfectly fine with a full on invasion of the southern border as long as they didn’t have to deal with it directly and as long as they thought they could use illegals as a voting block.  But ever since the Governor of Texas started busing thousands of them to progressive strongholds like Washington DC and New York, suddenly the leftists are not so hospitable.

Democrats laughed at the prospect of Texas relocating illegals at the beginning of this year.  Former White House Press Secretary Jen Psaki even snidely thanked Governor Greg Abbott for paying the bus fair of migrants into DC.  She is rather silent on the issue now.   

As of 2021, 36 states have some form of voter ID requirement, which makes it much more difficult for Democrats to exploit illegal immigrants as vote fodder in local and national elections.  Some blue states have tried to institute ID benefits to migrants, but these measures are few and far between.  Meaning, the migrants are no longer of much use to them other than to continue degrading the legitimacy of the border.

Furthermore, New York and DC social welfare systems are being overwhelmed by the flood of illegals, so much so that they have demanded the deployment of national guard troops to help deal with the influx of people.  This isn’t going to happen according to the Pentagon, and now they are stuck.  Keep in mind, Abbot has only bused around 4000 illegals to New York and 6000 to DC – That’s all it took to send both city social systems into a death spiral, showing yet again how economically weak blue states currently are.     

They can’t deny the entry of the migrants because then they would look like hypocrites, so, all they can do now is attack Greg Abbot as if he is doing something monstrous to them.   The whole thing is actually quite hilarious when you think about it – Karma really is a bitch.  

This week, New York Mayor Eric Adams once again tried to spin the situation, saying that Abbot was “using innocent people as political pawns to manufacture a crisis.” He then called the action “horrific.”  But isn’t that exactly what the Democrats have been doing for decades:  Using migrants as political pawns while busing them and flying them into various regions without permission?  Haven’t Democrats been creating an artificial economic and safety crisis within border states?  Now that they are getting a taste of their own medicine, suddenly the strategy is “horrific?”

Keep in mind that this was the same mayor that refused an invitation to Texas to see the dangerous border conditions for himself, so, Abbott is simply bringing those border conditions to New York to teach him a lesson. 

It’s interesting how 10,000 illegal immigrants invading Texas on top of millions more each year was not a problem at all for leftists before, but you move those same migrants to their backyard and now we have a humanitarian crisis that requires the national guard.  Can someone please ask the Mayor of New York where exactly Texas should send these migrants other than his city?  Where would he like them to go? Maybe back to their countries of origin?  But that would be “racist,” right?

And here we get to the base argument for and against illegal immigration:  Leftists claim that America is a nation “built by immigrants” and anyone who stands against open borders is “racist.”  They ignore all the logistics because they’re not interested.  Only virtue signaling matters to them.
 
Conservatives don’t actually care about the color of the immigrants, they care about border integrity and security, and they also don’t like the attempts by leftists to flood the voter pool with people who are not legally allowed to vote.  If someone wants to immigrate here, they can regardless of skin color, they just have to go through LEGAL channels.

Leftists argue that these immigrants are actually “refugees” and not illegals.  This is just another way for them to manipulate language in order to change the optics of the situation.  These people are not “refugees,” and even if they were, it would not matter.  They are still here illegally, and now they are the problem of New York and Washington DC.  

In the vast majority of nations on the planet, sneaking past the border is a serious crime.  Any American that does this would be arrested and jailed, possibly for years.  If they are lucky they will just be forcibly deported.  However, for some reason the political left and a host of foreigners think that the US is supposed to open its doors wide to anyone and everyone without regard for security, the economy or election integrity.  

Leftists will of course double down on their foolishness, even while their systems crumble under the weight of immigrants that have no capacity to assimilate while they leach off of social welfare programs.  The only reason Eric Adams thinks this is horrific is because now he has to face the ugly realities of his own destructive ideology.  If it was some mayor in a Texas city dealing with the problem, Adams would not care.   

Tyler Durden
Tue, 08/09/2022 – 17:45

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Deep State’s “Next Step Will Be Assassination” After Trump Raid, Warns Former NYC Police Commissioner

Deep State’s “Next Step Will Be Assassination” After Trump Raid, Warns Former NYC Police Commissioner

Authored by Steve Watson via Summit News,

Former New York City Police Commissioner Bernard Kerik has warned that if the FBI’s raid on President Trump’s home doesn’t stop him running in 2024, the “next step” for those seeking absolute control of the U.S. political system will be assassination.

Kerik, who was police commissioner during the 9/11 attacks, made the comments in a response to a tweet from former acting Director of the United States National Intelligence Richard Grenell, who blasted the raid as “outrageous” and akin to the actions of “third world dictators.”

In an appearance on Newsmax, Kerik, who was infamously pardoned by Trump in early 2020 after serving prison time for tax fraud, further stated “I hear people talking, they said the Democrats want this guy so bad that they wouldn’t put assassination behind it.”

“I’m gonna tell you something. they’ve tried impeachment, they’ve tried another impeachment, they’ve tried one investigation after another. This is about one thing, this is about stopping him from running in 2024,” Kerik further urged.

“I’m not into conspiracies, I’m not into anti-government rhetoric. This is the first time in my lifetime that I would say I am deathly afraid for Donald Trump. I would not put assassination behind these people,” Kerik further declared.

Watch:

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Tyler Durden
Tue, 08/09/2022 – 17:25

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Daily Briefing: “It Is All About Oil Prices”

Daily Briefing: “It Is All About Oil Prices”

Marko Papic has a very clear view of Wednesday morning’s report from the Bureau of Labor Statistics on the July U.S. Consumer Price Index: “Getting the inflection in CPI prints is really important,” he says. “So, yes, even a minor decline is relevant.” Papic, a partner and the chief strategist at Clocktower Group, also has a very clear view of the most important factor in the global inflation calculus: crude oil. “The bottom line is that if oil prices fall further, don’t expect the equity rebound to end. It is all about oil prices at this point.” Papic joins Real Vision’s Andreas Steno Larsen to talk about oil, inflation, and equity markets. We also hear from David Woo, who compares the China-Taiwan situation to the Russia-Ukraine conflict and offers the following geopolitical marker: “Before the end of August, we will know how the situation in Ukraine is going to play out.” Watch the full interview featuring David Woo and Andreas Steno Larsen here: https://rvtv.io/3Pds1Ro.

Tyler Durden
Tue, 08/09/2022 – 14:43

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Court Upholds N.C. Statute That Criminalizes Knowingly/Recklessly Libelous Statements About Candidates

Grimmett v. Costa, decided today by Judge Catherine Eagles (M.D.N.C.), refused to issue a preliminary injunction against a N.C. statute that makes it a misdemeanor

[f]or any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.

From the opinion, which I think is likely correct as to such narrow statutes focused on libels of candidates (because [1] narrowly crafted criminal libel statutes are generally constitutional under Supreme Court precedents, even though [2] broader laws banning lies in election campaigns, including ones that aren’t libelous of particular individuals, are likely unconstitutional):

The defendant, N. Lorrin Freeman, Wake County District Attorney, expects to present testimony to a grand jury for it to determine whether to initiate criminal proceedings for violation of this statute based on a political advertisement published and circulated during North Carolina’s 2020 general election for Attorney General. The plaintiffs, persons and entities involved with the production and circulation of that advertisement, contend the statute on its face violates the First Amendment and seek a preliminary injunction barring enforcement.

The plaintiffs are not likely to succeed on the merits of their facial constitutional claim. The statute criminalizes false defamatory speech about public officials made with actual malice; such a statute is constitutionally permissible. Assuming a more exacting level of scrutiny applies because the statute is directed to political speech, the statute advances compelling state interests in protecting against fraud and libel in elections and is narrowly tailored to serve those interests….

In 2020, Josh Stein and Jim O’Neill ran for Attorney General of North Carolina. Mr. O’Neill was the Forsyth County District Attorney. The Stein Campaign paid Ralston Lapp to produce and coordinate the media placement of a political advertisement known as “Survivor” during the lead-up to the general election. Ms. Grimmett, one of the plaintiffs, appears in the advertisement, and states “[a]s a survivor of sexual assault that means a lot to me and when I learned that Jim O’Neill left 1,500 rape kits on a shelf leaving rapists on the streets, I had to speak out.” “Survivor” was broadcast on television stations in North Carolina during September and October 2020.

In September 2020, an attorney for the “Friends of Jim O’Neill” campaign committee filed a complaint with the North Carolina State Board of Elections asserting that “Survivor” contained a false “derogatory report” about Mr. O’Neill and violated § 163-274(a)(9). The attorney asked the Board to investigate the allegations, find probable cause, and refer the complaint to the Wake County District Attorney.

By July 2021, the Board had completed its investigation and presented its findings and recommendation to the Wake County District Attorney’s Office. After further investigation by the State Bureau of Investigation, District Attorney Freeman’s office decided in July 2022 to present the evidence to a grand jury for a determination of whether criminal charges arising out of the “Survivor” advertisement should be brought for violation of § 163-274(a)(9)….

[Section] 163-274(a)(9) is a criminal libel law that prohibits false defamatory speech made with actual malice and withstands scrutiny appropriate for restrictions on false defamatory political speech …. Content-based restrictions on false defamatory speech are permitted under the First Amendment, with appropriate safeguards.See, e.g., New York Times v. Sullivan (1964) (requiring a heightened “actual malice” standard before imposing liability for defaming a public official); Gertz v. Robert Welch, Inc. (1974) (creating some limits on liability for defaming private figures). {Section 163-274(a)(9) specifically prohibits publication and circulation, with actual malice, of “derogatory reports with reference to any candidate in a primary or election.” The Court understands a “derogatory report” to encompass false defamatory speech about a candidate and nothing more. North Carolina case law regularly uses the word “derogatory” in defamation cases, and the North Carolina Supreme Court interprets statutes in ways that avoid constitutional problems.}

This rule extends to criminal libel laws, of which § 163-274(a)(9) is a subset. See Garrison v. Louisiana (1964). Garrison is still good law, and it squarely says that criminal libel statutes prohibiting false defamatory statements made with actual malice do not violate the First Amendment. See also Frese v. MacDonald (D.N.H. 2021) (holding a New Hampshire criminal libel statute was not unconstitutionally overbroad because it conformed with Garrison), appeal filed (1st Cir. Jan. 27, 2021); Phelps v. Hamilton (10th Cir. 1995) (upholding a Kansas criminal defamation statute as facially valid after interpreting it to require actual malice); see generally United States v. Alvarez, 567 U.S. 709, 719 (2012) (citing with approval Garrison‘s holding that in the context of false defamatory speech “even when the utterance is false, the great principles of the Constitution which secure freedom of expression … preclude attaching adverse consequences to any except the knowing or reckless falsehood”).

Section 163-274(a)(9) meets those requirements. Publication or circulation of “derogatory reports” is only criminal if the defamatory report is false and is published or circulated with knowledge it is false or in reckless disregard for its truth or its falsity….

Because § 163-274(a)(9) is directed specifically at political speech in the context of an election, it is not enough that the statute passes muster under Garrison. Political speech in the context of an election is the kind of speech recognized as “the core of the protection afforded by the First Amendment.” … But the fact that the statute meets the requirements in Garrison is not irrelevant to the analysis, nor is the fact that the regulated speech is false and defamatory. Indeed, all nine justices in Alvarez, across the plurality, concurring, and dissenting opinions, agreed that speech’s falsity is relevant to the First Amendment analysis….

Here, … North Carolina is criminalizing only a subset of criminal libel. This is a category of speech for which content-based restrictions are permissible, assuming appropriate safeguards are in place. Under Garrison, the state could make all false defamatory statements made with actual malice a crime. It is thus difficult to see how the state’s decision to narrow the scope of a criminal libel statute to apply to a type of speech that causes additional societal harms is unconstitutional, assuming the statute protects against those harms and does not overreach.

The weight of the state’s interests here cannot be questioned. First, its historical interest in protecting citizens from defamation, does not disappear because the citizen is a candidate for political office. States have an additional compelling interest in preventing fraud and libel in elections, which “may have serious adverse consequences for the public at large,” and in “preserving the integrity of [their] election process.” As the Supreme Court presciently noted in 1964,

At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.

And, as the plurality pointed out in Alvarez, there is no constitutional issue with statutes prohibiting false statements that “protect the integrity of Government processes, quite apart from merely restricting false speech.” See also id. (noting that fraud is one of the “historic and traditional categories” of false statements subject to appropriate content-based restrictions). An election is a government process of the most fundamental kind.

Section 163-274(a)(9) is narrowly tailored to meet these interests[:]….

  • The law applies only to false defamatory reports made with actual malice; since New York Times, this high standard has been repeatedly recognized as sufficient to protect the First Amendment rights of those engaged in speech about public figures.
  • To meet the goal of protecting government processes from fraud, the law includes a subjective intent requirement like those applied to regulate or prohibit fraudulent statements in other contexts. See generally Illinois ex rel. Madigan v. Telemarketing Assoc., Inc. (2003) (recognizing a complainant in an Illinois fraud action must show that the defendant made a knowingly false statement of material fact “with the intent to mislead the listener, and succeeded in doing so”).
  • To meet the goal of protecting the integrity of elections, the statute applies only to fraudulent defamatory statements with the potential to undermine an election: derogatory reports about a candidate intended to affect the candidate’s electoral chances.
  • The requirement of a derogatory report intended to affect a candidate’s electoral chances imposes an implicit timing element: it must be speech around the time of an election. The prohibition is thus limited to false defamatory and malicious statements made during a time when false and malicious defamatory statements has the potential to gather momentum with little time for the often slower-to-surface factual counterspeech to be effective. See Whitney v. California (1927) (Brandeis, J., concurring) (recognizing counterspeech is effective only “if there be time … through discussion [to counteract] the falsehood and fallacies”).
  • The parties implicitly acknowledge that the statute targets only false statements about verifiable facts in elections. It does not restrict pure opinion or negative commentary.
  • The law is not directed to a particular subject, unlike the statute at issue in Alvarez (noting the dangers of “compil[ing] a list of subjects about which false statements are punishable”). It applies only to false defamatory statements about candidates.

Because the speech that § 163-274(a)(9) prohibits—false defamatory speech about candidates intended to affect elections—must be made with actual malice and must be factual, the law provides appropriate “breathing space” for protected speech. The law does not trigger “absolute accountability for factual misstatements in the course of political [campaigns].”

Indeed, not even all falsehoods stated with actual malice fall within the statute’s reach; it provides two additional limitations on its application: the maliciously false statement must be one, derogatory, i.e., defamatory, and two, made with the intent to “affect the chances” of an electoral candidate. The statute is narrowly tailored to promote compelling state interests in protecting candidates for office from false defamatory statements, protecting governmental processes from fraud, and protecting elections from being undermined by “those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool.”

The plaintiffs cite several recent cases decided in the wake of Alvarez and holding that state political false statement laws violated the First Amendment; they contend the cases support a finding that § 163-274(a)(9) is facially unconstitutional. Those laws each incorporated an actual malice requirement and the Ohio, Minnesota, and Massachusetts laws had similar provisions limiting application to speech that was intended to influence an election.

But § 163-274(a)(9) has a further limitation; it includes a requirement that the speech be defamatory. As each of the courts recognized when invalidating the laws at issue, those laws did not have this limitation and criminalized all false statements intended to influence elections. Section 163-274(a)(9) thus applies more narrowly than each of the laws held to be unconstitutional. This additional requirement moves the restricted speech back into a “historic and traditional category of expression” long recognized as subject to appropriate content-based restrictions.

The plaintiffs also contend that the five tailoring concerns the Sixth Circuit identified in Susan B. Anthony List when reviewing Ohio’s political false statement law apply here. But those tailoring factors are not determinative for several reasons. First, the list of factors reads more like a means to bureaucratically undermine the holdings in Garrison, and New York Times, by making it impossible for a state to constitutionally regulate false and malicious lies about a candidate made during a campaign. Second, the Sixth Circuit would require at least two means of tailoring that appear mutually exclusive. {The Sixth Circuit would require a criminal libel statute to require quick action during the lead-up to an election, while at the same time imposing a detailed and complicated set of multiple safeguards and procedural undertakings before such quick action could be taken.} Third, the Sixth Circuit’s approach disregards the Supreme Court’s cautions that “a facial challenge must fail where the statute has a plainly legitimate sweep” and that courts “must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.”

Putting aside those problems, the factors identified in Susan B. Anthony List do not apply with equal force to § 163-274(a)(9). The tailoring issues there, see Susan B. Anthony List, stemmed in part from the Ohio law’s broader sweep, which included all false non-material statements intended to influence an election…

In evaluating whether the statute provides sufficient breathing room, it is appropriate to account for the possibility that government officials might misuse § 163- 274(a)(9) to prosecute political opponents, which could chill protected speech. But this risk is not enough to facially invalidate the statute. There are institutional protections from such prosecutorial abuses. The difficulties in succeeding on meritless charges, electoral consequences to prosecutors who bring them, and civil suits for malicious prosecution serve as guardrails against government officials pursuing opportunistic and meritless prosecutions against political opponents.

There is another protection for protected speech: the courts are available to curb overzealous application of the statute to particular speech if that application would violate the First Amendment. The North Carolina Supreme Court has shown its willingness to do so, both by finding statutes to violate the First Amendment as applied and to require jury instructions that bring application of a regulation of speech within the bounds of the Constitution. {The Court expresses no opinion as to whether application of § 163-274(a)(9) to the arguably metaphorical speech here would be unconstitutional. [Recall that the court here is dealing only with a facial challenge to the statute. -EV]} …

False malicious defamatory speech can be “used as an effective political tool to unseat the public servant or even topple an administration” and can lead to volatile, unstable, and even violent results “at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.” Garrison. Because § 163-274(a)(9) is a criminal libel law that falls within a category of speech long subject to appropriate content-based restrictions; satisfies the requirements set forth in Garrison; and is appropriately narrowed to address legitimate and substantial governmental and public interests and to provide breathing room for protected speech, the plaintiffs’ constitutional claim that § 163-274(a)(9) facially violates the First Amendment is not likely to succeed on the merits.

The post Court Upholds N.C. Statute That Criminalizes Knowingly/Recklessly Libelous Statements About Candidates appeared first on Reason.com.

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The Biden Administration Defends the Federal Ban on Gun Possession by Medical Marijuana Users


Joe Biden speaking

The Biden administration yesterday urged a federal judge to dismiss a lawsuit challenging the ban on gun possession by medical marijuana users, saying that law is consistent with a long tradition of firearm regulation in the United States. Furthermore, the Justice Department says, that prohibition makes perfect sense because marijuana use impairs the ability to handle guns responsibly.

The government’s lawyers were responding to a lawsuit by Nikki Fried, a Democrat who runs the Florida Department of Agriculture and Consumer Services. Fried, whose department oversees concealed carry permits and some parts of Florida’s medical marijuana industry, argues that prohibiting all cannabis consumers from owning guns violates the Second Amendment. She also claims that the policy violates a congressional spending rider, known as the Rohrabacher-Farr Amendment, that bars the Justice Department from interfering with the implementation of state medical marijuana laws.

As the Justice Department notes in its motion to dismiss, courts have “uniformly upheld” the federal law that criminalizes gun possession by “unlawful users” of controlled substances, which is a felony punishable by up to 10 years in prison. In the 2016 case Wilson v. Lynch, for example, the U.S. Court of Appeals for the 9th Circuit ruled that banning gun sales to people who have medical marijuana cards is consistent with the Second Amendment because “empirical data and legislative determinations support a strong link between drug use and violence.”

That decision, Fried argues, suffered from “a thin and stale factual record” and ignored a 2013 study commissioned by the Office of National Drug Control Policy that found “marijuana use does not induce violent crime.” She says “the stated factual basis for Wilson and its progeny, at least as it relates to state-law-abiding medical marijuana patients, is obsolete and without scientific support.”

The Justice Department’s brief does not claim that marijuana use makes people violent. Instead, it emphasizes marijuana’s effects on “judgment, cognition, and physical coordination,” which other courts have noted and Florida acknowledges in the consent form it requires for medical marijuana patients. Those effects, the Justice Department argues, make cannabis consumption incompatible with responsible gun ownership.

The same argument, of course, could be applied to many legal drugs. Yet the federal government does not prohibit gun ownership by people who take psychoactive prescription drugs, such as benzodiazepines or opioid analgesics. Nor does it prohibit drinkers from owning firearms, although the Justice Department notes state gun laws aimed at “alcoholics” or “intoxicated” individuals. The ban for cannabis consumers, by contrast, applies whether or not they handle guns while impaired.

The Justice Department compares cannabis consumers to “the mentally ill,” quoting a 2019 case in which a federal appeals court averred that “habitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly fire-arms.” Yet there is no blanket ban on gun possession by people with psychiatric diagnoses. The federal disqualification applies only to someone who has been “adjudicated as a mental defective” or “committed to any mental institution at 16 years of age or older.”

That ban is surely overbroad, since it includes people who were never deemed dangerous to others and lasts long after they were subjected to involuntary treatment. But the rule is not nearly as broad as the Justice Department implies. If the federal government can draw distinctions among “the mentally ill,” the vast majority of whom are allowed to own guns, why does it assume that all cannabis consumers are incapable of exercising that right without endangering the public?

Last June in New York State Rifle & Pistol Association v. Bruen, the Supreme Court said gun restrictions comply with the Second Amendment only when they are “consistent with this Nation’s historical tradition of firearm regulation.” That test puts the burden on the government to show that a law is analogous to policies that have long been seen as consistent with the right to keep and bear arms.

Toward that end, the Justice Department notes that “in England and in America from the colonial era through the 19th century, governments regularly disarmed a variety of groups deemed dangerous.” For instance, “England disarmed Catholics in the 17th and 18th centuries,” and “many American colonies forbade providing Indians
with firearms.” Those examples may not help the government’s case as much as the Justice Department thinks. Likewise with another tradition that the brief does not mention: banning firearm possession by black people, another group “deemed dangerous.”

The government is on somewhat firmer ground when it notes the long history of banning gun possession by people convicted of certain crimes. That tradition underlies the current federal gun ban for people convicted of crimes punishable by more than a year of incarceration. But as Justice Amy Coney Barrett pointed out as a judge on the U.S. Court of Appeals for the 7th Circuit, that “wildly overinclusive” rule sweeps much more broadly than the historical analogs cited by the government.

After delving into that history, Barrett concluded that a ban covering nearly all people convicted of crimes currently defined as felonies, including many whose offenses did not involve violence, was inconsistent with the Second Amendment. If so, the Justice Department’s suggestion that lawbreaking as minor as marijuana possession is enough to disqualify someone from owning guns seems even more dubious.

Such conduct was not even a crime until the second decade of the 20th century, when states began to ban marijuana. And it seems doubtful that Americans in the 19th century, when patent medicines commonly included cannabis, would have thought that eschewing such products should be a condition for exercising the rights protected by the Second Amendment and state analogs.

The Justice Department argues that the Second Amendment rights recognized by the Supreme Court apply only to “law-abiding citizens,” which cannabis consumers are not. It notes that federal law recognizes no legitimate use for marijuana, whether medical or recreational, and makes marijuana possession “a crime punishable by up to a year in prison.”

While all that is true, President Joe Biden has said those policies are irrational. Although he opposes the outright repeal of federal pot prohibition, Biden thinks that no one should go to jail for marijuana possession, that cannabis should be reclassified to facilitate medical research, and that the federal government should not interfere with state laws allowing medical or recreational use.

On that last point, the Justice Department argues that enforcing the gun ban for medical marijuana users does not run afoul of the Rohrabacher-Farr Amendment. That rider, it says, applies only to drug prosecutions, not firearm prosecutions. It adds that the gun ban has not stopped Florida or the 36 other states that allow medical use of marijuana from implementing those laws; it merely has forced would-be participants to choose between guns and the medicine that could relieve their symptoms.

Two of the plaintiffs in this case are medical marijuana patients who unsuccessfully tried to buy guns. Those transactions were blocked after they admitted to using cannabis on the form required for gun purchases from federally licensed dealers. “Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?” the form asks. It warns that “the use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside.”

While those two plaintiffs might have standing to sue, the Justice Department says, Fried does not because she has not suffered any cognizable injury. The brief adds that Neill Franklin, a gun owner who says he might use medical marijuana but for the federal firearm ban, is not a proper plaintiff.

In any case, the Biden administration says, prohibiting medical marijuana users from owning guns is a perfectly rational policy that is consistent with the historical understanding of the right to keep and bear arms. Never mind that the president himself has said the current legal treatment of cannabis makes no sense, or that there is no 19th-century precedent for prohibiting people from owning guns based on the medicine they use.

Fried is currently vying with other Democrats to oppose Florida’s Republican governor, Ron DeSantis, when he runs for reelection this fall. Despite their differences, Fried and DeSantis see eye to eye on this issue. “The governor stands for protecting Floridians’ constitutional rights—including 2nd Amendment rights,” his office said after Fried filed her lawsuit in April. “Floridians should not be deprived of a constitutional right for using a medication lawfully.”

The post The Biden Administration Defends the Federal Ban on Gun Possession by Medical Marijuana Users appeared first on Reason.com.

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Court Upholds N.C. Statute That Criminalizes Knowingly/Recklessly Libelous Statements About Candidates

Grimmett v. Costa, decided today by Judge Catherine Eagles (M.D.N.C.), refused to issue a preliminary injunction against a N.C. statute that makes it a misdemeanor

[f]or any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity, when such report is calculated or intended to affect the chances of such candidate for nomination or election.

From the opinion, which I think is likely correct as to such narrow statutes focused on libels of candidates (because [1] narrowly crafted criminal libel statutes are generally constitutional under Supreme Court precedents, even though [2] broader laws banning lies in election campaigns, including ones that aren’t libelous of particular individuals, are likely unconstitutional):

The defendant, N. Lorrin Freeman, Wake County District Attorney, expects to present testimony to a grand jury for it to determine whether to initiate criminal proceedings for violation of this statute based on a political advertisement published and circulated during North Carolina’s 2020 general election for Attorney General. The plaintiffs, persons and entities involved with the production and circulation of that advertisement, contend the statute on its face violates the First Amendment and seek a preliminary injunction barring enforcement.

The plaintiffs are not likely to succeed on the merits of their facial constitutional claim. The statute criminalizes false defamatory speech about public officials made with actual malice; such a statute is constitutionally permissible. Assuming a more exacting level of scrutiny applies because the statute is directed to political speech, the statute advances compelling state interests in protecting against fraud and libel in elections and is narrowly tailored to serve those interests….

In 2020, Josh Stein and Jim O’Neill ran for Attorney General of North Carolina. Mr. O’Neill was the Forsyth County District Attorney. The Stein Campaign paid Ralston Lapp to produce and coordinate the media placement of a political advertisement known as “Survivor” during the lead-up to the general election. Ms. Grimmett, one of the plaintiffs, appears in the advertisement, and states “[a]s a survivor of sexual assault that means a lot to me and when I learned that Jim O’Neill left 1,500 rape kits on a shelf leaving rapists on the streets, I had to speak out.” “Survivor” was broadcast on television stations in North Carolina during September and October 2020.

In September 2020, an attorney for the “Friends of Jim O’Neill” campaign committee filed a complaint with the North Carolina State Board of Elections asserting that “Survivor” contained a false “derogatory report” about Mr. O’Neill and violated § 163-274(a)(9). The attorney asked the Board to investigate the allegations, find probable cause, and refer the complaint to the Wake County District Attorney.

By July 2021, the Board had completed its investigation and presented its findings and recommendation to the Wake County District Attorney’s Office. After further investigation by the State Bureau of Investigation, District Attorney Freeman’s office decided in July 2022 to present the evidence to a grand jury for a determination of whether criminal charges arising out of the “Survivor” advertisement should be brought for violation of § 163-274(a)(9)….

[Section] 163-274(a)(9) is a criminal libel law that prohibits false defamatory speech made with actual malice and withstands scrutiny appropriate for restrictions on false defamatory political speech …. Content-based restrictions on false defamatory speech are permitted under the First Amendment, with appropriate safeguards.See, e.g., New York Times v. Sullivan (1964) (requiring a heightened “actual malice” standard before imposing liability for defaming a public official); Gertz v. Robert Welch, Inc. (1974) (creating some limits on liability for defaming private figures). {Section 163-274(a)(9) specifically prohibits publication and circulation, with actual malice, of “derogatory reports with reference to any candidate in a primary or election.” The Court understands a “derogatory report” to encompass false defamatory speech about a candidate and nothing more. North Carolina case law regularly uses the word “derogatory” in defamation cases, and the North Carolina Supreme Court interprets statutes in ways that avoid constitutional problems.}

This rule extends to criminal libel laws, of which § 163-274(a)(9) is a subset. See Garrison v. Louisiana (1964). Garrison is still good law, and it squarely says that criminal libel statutes prohibiting false defamatory statements made with actual malice do not violate the First Amendment. See also Frese v. MacDonald (D.N.H. 2021) (holding a New Hampshire criminal libel statute was not unconstitutionally overbroad because it conformed with Garrison), appeal filed (1st Cir. Jan. 27, 2021); Phelps v. Hamilton (10th Cir. 1995) (upholding a Kansas criminal defamation statute as facially valid after interpreting it to require actual malice); see generally United States v. Alvarez, 567 U.S. 709, 719 (2012) (citing with approval Garrison‘s holding that in the context of false defamatory speech “even when the utterance is false, the great principles of the Constitution which secure freedom of expression … preclude attaching adverse consequences to any except the knowing or reckless falsehood”).

Section 163-274(a)(9) meets those requirements. Publication or circulation of “derogatory reports” is only criminal if the defamatory report is false and is published or circulated with knowledge it is false or in reckless disregard for its truth or its falsity….

Because § 163-274(a)(9) is directed specifically at political speech in the context of an election, it is not enough that the statute passes muster under Garrison. Political speech in the context of an election is the kind of speech recognized as “the core of the protection afforded by the First Amendment.” … But the fact that the statute meets the requirements in Garrison is not irrelevant to the analysis, nor is the fact that the regulated speech is false and defamatory. Indeed, all nine justices in Alvarez, across the plurality, concurring, and dissenting opinions, agreed that speech’s falsity is relevant to the First Amendment analysis….

Here, … North Carolina is criminalizing only a subset of criminal libel. This is a category of speech for which content-based restrictions are permissible, assuming appropriate safeguards are in place. Under Garrison, the state could make all false defamatory statements made with actual malice a crime. It is thus difficult to see how the state’s decision to narrow the scope of a criminal libel statute to apply to a type of speech that causes additional societal harms is unconstitutional, assuming the statute protects against those harms and does not overreach.

The weight of the state’s interests here cannot be questioned. First, its historical interest in protecting citizens from defamation, does not disappear because the citizen is a candidate for political office. States have an additional compelling interest in preventing fraud and libel in elections, which “may have serious adverse consequences for the public at large,” and in “preserving the integrity of [their] election process.” As the Supreme Court presciently noted in 1964,

At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.

And, as the plurality pointed out in Alvarez, there is no constitutional issue with statutes prohibiting false statements that “protect the integrity of Government processes, quite apart from merely restricting false speech.” See also id. (noting that fraud is one of the “historic and traditional categories” of false statements subject to appropriate content-based restrictions). An election is a government process of the most fundamental kind.

Section 163-274(a)(9) is narrowly tailored to meet these interests[:]….

  • The law applies only to false defamatory reports made with actual malice; since New York Times, this high standard has been repeatedly recognized as sufficient to protect the First Amendment rights of those engaged in speech about public figures.
  • To meet the goal of protecting government processes from fraud, the law includes a subjective intent requirement like those applied to regulate or prohibit fraudulent statements in other contexts. See generally Illinois ex rel. Madigan v. Telemarketing Assoc., Inc. (2003) (recognizing a complainant in an Illinois fraud action must show that the defendant made a knowingly false statement of material fact “with the intent to mislead the listener, and succeeded in doing so”).
  • To meet the goal of protecting the integrity of elections, the statute applies only to fraudulent defamatory statements with the potential to undermine an election: derogatory reports about a candidate intended to affect the candidate’s electoral chances.
  • The requirement of a derogatory report intended to affect a candidate’s electoral chances imposes an implicit timing element: it must be speech around the time of an election. The prohibition is thus limited to false defamatory and malicious statements made during a time when false and malicious defamatory statements has the potential to gather momentum with little time for the often slower-to-surface factual counterspeech to be effective. See Whitney v. California (1927) (Brandeis, J., concurring) (recognizing counterspeech is effective only “if there be time … through discussion [to counteract] the falsehood and fallacies”).
  • The parties implicitly acknowledge that the statute targets only false statements about verifiable facts in elections. It does not restrict pure opinion or negative commentary.
  • The law is not directed to a particular subject, unlike the statute at issue in Alvarez (noting the dangers of “compil[ing] a list of subjects about which false statements are punishable”). It applies only to false defamatory statements about candidates.

Because the speech that § 163-274(a)(9) prohibits—false defamatory speech about candidates intended to affect elections—must be made with actual malice and must be factual, the law provides appropriate “breathing space” for protected speech. The law does not trigger “absolute accountability for factual misstatements in the course of political [campaigns].”

Indeed, not even all falsehoods stated with actual malice fall within the statute’s reach; it provides two additional limitations on its application: the maliciously false statement must be one, derogatory, i.e., defamatory, and two, made with the intent to “affect the chances” of an electoral candidate. The statute is narrowly tailored to promote compelling state interests in protecting candidates for office from false defamatory statements, protecting governmental processes from fraud, and protecting elections from being undermined by “those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool.”

The plaintiffs cite several recent cases decided in the wake of Alvarez and holding that state political false statement laws violated the First Amendment; they contend the cases support a finding that § 163-274(a)(9) is facially unconstitutional. Those laws each incorporated an actual malice requirement and the Ohio, Minnesota, and Massachusetts laws had similar provisions limiting application to speech that was intended to influence an election.

But § 163-274(a)(9) has a further limitation; it includes a requirement that the speech be defamatory. As each of the courts recognized when invalidating the laws at issue, those laws did not have this limitation and criminalized all false statements intended to influence elections. Section 163-274(a)(9) thus applies more narrowly than each of the laws held to be unconstitutional. This additional requirement moves the restricted speech back into a “historic and traditional category of expression” long recognized as subject to appropriate content-based restrictions.

The plaintiffs also contend that the five tailoring concerns the Sixth Circuit identified in Susan B. Anthony List when reviewing Ohio’s political false statement law apply here. But those tailoring factors are not determinative for several reasons. First, the list of factors reads more like a means to bureaucratically undermine the holdings in Garrison, and New York Times, by making it impossible for a state to constitutionally regulate false and malicious lies about a candidate made during a campaign. Second, the Sixth Circuit would require at least two means of tailoring that appear mutually exclusive. {The Sixth Circuit would require a criminal libel statute to require quick action during the lead-up to an election, while at the same time imposing a detailed and complicated set of multiple safeguards and procedural undertakings before such quick action could be taken.} Third, the Sixth Circuit’s approach disregards the Supreme Court’s cautions that “a facial challenge must fail where the statute has a plainly legitimate sweep” and that courts “must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.”

Putting aside those problems, the factors identified in Susan B. Anthony List do not apply with equal force to § 163-274(a)(9). The tailoring issues there, see Susan B. Anthony List, stemmed in part from the Ohio law’s broader sweep, which included all false non-material statements intended to influence an election…

In evaluating whether the statute provides sufficient breathing room, it is appropriate to account for the possibility that government officials might misuse § 163- 274(a)(9) to prosecute political opponents, which could chill protected speech. But this risk is not enough to facially invalidate the statute. There are institutional protections from such prosecutorial abuses. The difficulties in succeeding on meritless charges, electoral consequences to prosecutors who bring them, and civil suits for malicious prosecution serve as guardrails against government officials pursuing opportunistic and meritless prosecutions against political opponents.

There is another protection for protected speech: the courts are available to curb overzealous application of the statute to particular speech if that application would violate the First Amendment. The North Carolina Supreme Court has shown its willingness to do so, both by finding statutes to violate the First Amendment as applied and to require jury instructions that bring application of a regulation of speech within the bounds of the Constitution. {The Court expresses no opinion as to whether application of § 163-274(a)(9) to the arguably metaphorical speech here would be unconstitutional. [Recall that the court here is dealing only with a facial challenge to the statute. -EV]} …

False malicious defamatory speech can be “used as an effective political tool to unseat the public servant or even topple an administration” and can lead to volatile, unstable, and even violent results “at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.” Garrison. Because § 163-274(a)(9) is a criminal libel law that falls within a category of speech long subject to appropriate content-based restrictions; satisfies the requirements set forth in Garrison; and is appropriately narrowed to address legitimate and substantial governmental and public interests and to provide breathing room for protected speech, the plaintiffs’ constitutional claim that § 163-274(a)(9) facially violates the First Amendment is not likely to succeed on the merits.

The post Court Upholds N.C. Statute That Criminalizes Knowingly/Recklessly Libelous Statements About Candidates appeared first on Reason.com.

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Cuba’s Largest Thermoelectric Power Plant Offline Amid Depot Blaze

Cuba’s Largest Thermoelectric Power Plant Offline Amid Depot Blaze

Cash-strapped Cuba was forced to take its largest thermoelectric power plant offline due to a multi-day blaze at a fuel depot in the northern part of the country. 

Bloomberg reported the Ministry of Energy and Mines said the 200 MW Antonio Guiteras thermo plant was disconnected from the grid because of a water shortage. A local media outlet said the fire at the nearby Matanzas industrial storage complex had used up the water delivery to the power plant as firefighters battled the blaze, affecting four of the facility’s eight storage tanks. 

We noted Monday that the communist country’s worst fear about the 2.4-million-barrel Matanzas terminal would be realized if the thermo power plant was shuttered. That’s because its generators, fed by heavy crude oil from the Matanzas complex, provide a fifth of the country’s power needs. It remains to be seen if crude flows from the damaged storage facility to the power plant have been affected. 

This disaster comes as power grid failures have been rampant due to fuel shortages, forcing grid operators to impose widespread energy blackouts in some areas of the country for up to 12 hours since May. 

The Union of Electrical Workers said the new power failure indicates only half the island’s 3,000 MW peak energy demand can be met on Monday. About 1,223 MW of generation is offline. 

Cuba struggled to keep the lights on even before the fuel depot fire amid power plant breakdowns and fuel shortages. Rolling blackouts have sparked protests. Compound the risk of more power blackouts with annual inflation soaring to 29% in June, and it’s a perfect recipe for more social unrest. 

Reuters said Cuban officials could expand floating storage capacity to handle imports that would normally be offloaded at the Matanzas complex. 

The fire at the fuel depot has exposed a critical bottleneck. Matanzas is Cuba’s only terminal that can handle fuel shipments from large crude tankers piped to power plants across the country. 

Tyler Durden
Tue, 08/09/2022 – 17:05

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Two-Dozen GOP Lawmakers May Force Capitol Police To Release Unseen J6 Footage

Two-Dozen GOP Lawmakers May Force Capitol Police To Release Unseen J6 Footage

Authored by Patricia Tolson via The Epoch Times (emphasis ours),

As the Select Committee to Investigate the January 6 Attack on the United States Capitol continues its effort to prove allegations of insurrection against former President Donald Trump and his supporters, Capitol Police and House Democrats continue to block all efforts to force the release of all surveillance video footage and emails, which could possibly exonerate those being accused of wrongdoing. Now, Rep. Louis Gohmert (R-Texas) is citing a United States Code that could legally force the release of that evidence.

Rep. Louie Gohmert (R-Texas) on Capitol Hill in Washington on June 25, 2019. (Samira Bouaou/The Epoch Times)

In a July, 29, 2022 letter to Capitol Police Board Chair William J. Walker, obtained by The Epoch Times, Gohmert—backed by the signatures of 23 additional GOP lawmakers—demanded the release of footage captured on Capitol Hill security cameras on Jan. 6, 2021, currently being withheld under “sovereign immunity.”

Rep. Louie Gohmert (R-Texas) questions Attorney General William Barr who appears before the House Oversight Committee on Capitol Hill in Washington on July 28, 2020. (Matt McClain-Pool/Getty Images)

As you must be aware,” Gohmert wrote, “2 U.S.C. § 1979 states that ‘any Member … of either House of Congress’ can ‘obtain information from the Capitol Police regarding the operations and activities of the Capitol Police that affect the Senate and House of Representatives.’ Subsection (c) makes clear that nothing in that law may be construed to prevent us, as Members of the House of Representatives from our ability to obtain those videos.”

Gohmert concluded that “Releasing this information is absolutely essential to proper governance and truth to protect and perpetuate this self, governing nation.”

‘It’s About Revenge’

As The Epoch Times reported July 5, attorneys of Jan. 6 prisoners and defendants have provided evidence in several cases that indicate the government is manufacturing evidence to arrest and incarcerate people who attended the protest at the Capitol. In the meantime, Gohmert insists the government is also hiding evidence that could be used in the defense of these people.

That’s exactly what they’re doing,” Gohmert reiterated, noting how he himself has been a victim of the Jan. 6 Committee’s “Soviet-style propaganda.”

Reports disclose how Cassidy Hutchinson, former aide to the then-Whitehouse Chief of Staff Mark Meadows, told the Committee during her June deposition that Gohmert asked then-President Donald Trump for a pardon.

Gohmert demanded a release of the full, unedited video and transcript of Hutchinson’s deposition, saying the way the video was presented erased the fact that he was actually seeking pardons for “very deserving military members, former military, and one civilian servant.”

“I’ve been personally affected by the lies created by using tape,” Gohmert told The Epoch Times. “They had Cassidy Hutchinson saying I requested a pardon without getting the full context. I have never asked for a pardon for myself. I’ve never done anything that needed a pardon. But I was requesting pardons for a number of people that have been screwed over by the justice system.”

While a spokesperson for the Capitol Police declined to comment on the letter to The Washington Times, they did push back on allegations that Jan. 6 prisoners and defendants were not provided full access to video that has been provided to the U.S. Attorney’s Office (USAO).

“Every January 6th defendant has access to the same footage, which is everything the USAO is releasing,” the spokesperson told The Washington Times. “They do not just get what is relevant to them.”

The Road to 2 U.S.C. § 1979

In a May 19, 2022 letter (pdf) to Rep. Barry Loudermilk (R-Ga.), Select Committee Chairman Rep. Bennie Thompson (D-Miss.) wrote that the Board was seeking the Congressman’s “voluntary cooperation” in advancing their investigation.

“Based on our review of evidence in the Select Committee’s possession,” Thompson said, “we believe you have information regarding a tour you led through parts of the Capitol complex on January 5, 2021.”

“The American people deserve a full and accurate accounting of what happened on January 6th,” Thompson’s two-page letter concluded. “We aim to make informed legislative recommendations taking account of all relevant facts. Thank you in advance for your consideration of this request.”

The letter was also signed by the Committee Vice Chair Rep. Liz Cheney (R-Wyo.).

Rep. Barry Loudermilk (R-Ga.) speaks during a hearing in Fort Lauderdale, Fla., on May 6, 2019. (Joe Raedle/Getty Images)

In an immediate same-day response, Committee on House Administration Ranking Member Rep. Rodney Davis (R-Ill.) and Committee Member Loudermilk issued a joint press release, calling out the Select Committee for its false accusations.

“A constituent family with young children meeting with their Member of Congress in the House Office Buildings is not a suspicious group or ‘reconnaissance tour,’” the letter states. “The family never entered the Capitol building.”

The 1/6 political circus released the letter to the press before even notifying Mr. Loudermilk, who has still not received a copy,” the letter accuses. “The Select Committee is once again pushing a verifiably false narrative that Republicans conducted ‘reconnaissance tours’ on January 5th. The facts speak for themselves; no place that the family went on the 5th was breached on the 6th, the family did not enter the Capitol grounds on the 6th, and no one in that family has been investigated or charged in connection to January 6th.”

In a letter dated May 20, 2022, addressed to Capitol Police Board Chair William Walker and members Karen Gibson and J. Brett Blanton, Davis demanded the release of “all January 5th Capitol Tapes.”

“If the Board does not release the relevant footage in a timely manner, I will have no choice but to exercise my authority under 2 U.S.C. § 1979 to release the footage myself.

Rep. Rodney Davis (R-Il.) speaks in Washington on Jan. 9, 2020. (Alex Wong/Getty Images)

On June 15, 2022, Thompson sent another letter (pdf) to Loudermilk, again accusing him of personally escorting individuals through the Capitol Building for the purposes of conducting reconnaissance ahead of the rallies on Jan. 6. Thompson also reminded Loudermilk that the Committee had “invited” him to meet with them on May 19, 2022, about the “evidence,” which consisted of surveillance footage of Loudermilk leading a “tour of approximately ten individuals” through areas that are “not typically of interest to tourists, including hallways, staircases and security checkpoints.”

Surveillance footage shows a tour of approximately ten individuals led by you to areas in the Rayburn, Longworth, and Cannon House Office Buildings, as well as the entrances to tunnels leading to the U.S. Capitol,” Thompson said in his letter. “The below image shows you leading individuals on the tour:”

Screenshot of image from a June 15, 2022 letter written by Select Committee Chairman Bernie G. Thompson to United States Rep. Barry Loudermilk (R-Ga.), accusing him of personally escorting individuals through the Capitol Building for the purposes of conducting reconnaissance ahead of the rallies on Jan. 6. (Letter from the Select Committee to Investigate the January 6th Attack on the United States Capitol)

Two additional images in the letter show “an individual appearing to photograph a staircase in the basement of the Longworth House Office Building” while Loudermilk speaks “with others nearby,” and of people from Loudermilk’s tour “taking photographs of the tunnel leading from the Rayburn House Office Building to the Capitol.”

Images from a June 15, 2022 letter sent by Select Committee Chairman Bernie G. Thompson to United States Rep. Barry Loudermilk (R-Ga.), showing members of the Congressman’s tour taking photos. (Letter from the Select Committee to Investigate the January 6th Attack on the United States Capitol)

Loudermilk did not comply with the interview request.

On June 16, 2022, the Committee released surveillance footage of Loudermilk’s “tour,” overlayed with graphics and preceded by selected footage from other videos that add to their narrative of Loudermilk’s supposed guilt.

The Problems with Pick-and-Choose

For Mike Howell, senior advisor for Government Relations at The Heritage Foundation, the threat by Davis to release the Jan. 5 footage of Loudermilk, if the Capitol Police do not, raises a serious question.

Howell noted how Davis only threatened to release video footage that pertained to the Loudermilk incident and insisted he had the authority to do so.

“The question that’s been percolating is, ‘If you have the authority to release the tape from January fifth, why are you not releasing all of the tapes?’ That would be of major importance because there are a lot of major criminal cases coming down and defense attorneys have had problems trying to get access to these tapes themselves,” he told The Epoch Times.

Gohmert agreed the Committee should not be allowed “to just pick-and-choose which sections they show.”

“Yes, they should be able to show the defense what they’re going to use in prosecution. But they are also required to show the things that were more exonerating and exculpatory and that does not appear to have happened at all,” he said.

Howell sees at least two problems with this game of pick-and-choose.

First, the request by Davis only to release a segment of video he believes will prove his point is no different than the Jan. 6 Committee “selectively releasing portions they think show the best side of their version of events.”

Second: “If the authority exists, and Davis has the power through this statute to release the footage from Jan. 5,” Howell surmised, “why haven’t the tapes already been released in full?”

While Howell did remark that some will cite security issues as the reason for withholding most of the footage captured by cameras at the Capitol, he said he’s “got news for them.”

There are cameras all over the Capitol,” Howell countered. “So it’s not a matter of special camera angles. I think the real reason why they’re not being released is because it can potentially show information and video footage that could be helpful to people being charged by the Department of Justice as well as damaging to the narrative that the January 6 Committee is trying to establish.”

According to a sworn affidavit from Capitol Police General Counsel Thomas DiBiase, surveillance camera footage from the U.S. Capitol Police’s extensive system of cameras on U.S. Capitol grounds states “disclosure of any footage from these cameras is strictly limited and subject to a policy that regulates the release of footage.”

“Per Department 1000.002, Retrieval of Archived Video (see attachment 1), the release of any footage from the Department’s CCV system must be approved by the Assistant Chief of Police for Operations.”

Howell said the tapes need to be released to give people a “full accounting” of what happened on Jan. 2, 2021 and allow attorneys to go through the footage to find out if there is anything in there that may be helpful to their clients.

“In the minds of many Americans and Democrats on Capitol Hill, this event has been made out to be akin to 9/11.” Howell said. “So, the question is, why can’t the American people see what actually happened that day. I think there’s massive public interest in this, and that outweighs any other concerns, so the tapes belong in the public.”

Read more here…

Tyler Durden
Tue, 08/09/2022 – 16:45

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