Our government has grown beyond what it was intended to be

December 12, 2023

After the Revolutionary War when the Founders were working on a governing document, they worked hard to not only develop a good design, but a design that protected the people from a government that could control everything they did and thought.

The design they came up with was spectacular, creating a nation governed by a philosophy of limited government and individual freedom. It had three co-equal branches: the legislative branch to pass needed and beneficial laws; an administrative branch to run the country and enforce the laws; and a judicial branch decides the constitutionality of federal laws and resolves other disputes about federal laws.

The design was not perfect, but included a mechanism to amend the Constitution to make it better. Of course, the success of the design depended upon those working in government: the employees and appointed and elected officials. It was expected that everyone involved would understand and support the design.

But, as fate would have it, some politicians and bureaucrats have their own ideas about what should be done, and how. Consequently, the government has grown in size and power, well beyond what the Founders imagined. Still, despite the excesses of the politicians and bureaucrats, many of whom were honestly trying to make things better, the government has grown too big and too powerful.

Columnist George Will in a recent column provided some insight into where we are, discussing a lawsuit before the Supreme Court that could be a start to changing things back toward the original design. The column started with a quote from James Madison in Federalist 47. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”

He then went on to discuss the case, but used an example of bureaucratic/administrative overreach, and how such behavior weakens what was and could again be the best governmental design ever.

The example he used describes the typical enforcement activities of some federal agencies, in this case the Federal Trade Commission, as published in the Harvard Law Review.

“The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. 

“If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. This Commission adjudication can either take place before the full Commission or before a semiautonomous Commission administrative law judge. 

“If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission. If the Commission ultimately finds a violation, then, and only then, the affected private party can appeal to an Article III court. 

“But the agency decision, even before the bona fide Article III tribunal, possesses a very strong presumption of correctness on matters both of fact and of law.”

In this case, and many other similar instances, even if the rules in force have been assumed to be appropriate, or found to be appropriate by the courts, the behavior of the government agency in being the only party prosecuting the rule breaking, and deciding whether things are right or not, is more than just a little heavy-handed.

This is precisely what Madison was referring to in the Federalist article. When the government makes the rules, adjudicates the rules, decides the outcome and also the penalties, the people are not being fairly or constitutionally dealt with. 

In a government set up to be fair in its dealings with the people, it is clearly not in the best interest of the people when the politicians and bureaucrats work under the table to increase their power over the people, the very people they are elected and hired to serve.

In the example cited, and likely many others we may not have heard about, what is the difference between life in the United States, and in some third world or authoritarian regime? Realistically, we are not there yet, but have been walking in that direction.

What we find and have observed for a long time is a strong effort on the part of politicians and bureaucrats to engage in what former President Barack Obama promised during his 2008 campaign: “fundamentally transforming the United States of America.” 

There have been efforts to pack the Supreme Court; do away with the Electoral College; replace the local and state government control of elections with federal control of elections; move away from dependable energy sources; end our energy independent status; heavily restrict or ban citizen gun ownership; dictate what type of light bulbs and other conveniences and appliances we may have; and effectively open our southern border to all who want to enter, for whatever ends they may seek.

Our country is weaker and further from its original design than in many decades. Or, perhaps, ever.

Justice must not be allowed to be used as a partisan weapon

“Maybe it was the death threat delivered by a fellow law-enforcement officer while he stood shackled in belly chains.

“Perhaps it was being described as a ‘terrorist’ by a federal judge who will preside over his trial.

“It could have been being released on bail by a U.S. magistrate judge in Tennessee, only to be ordered held until trial by a U.S. district judge in Washington D.C.

“Former sheriff’s deputy Ronald McAbee, 28, of Tennessee, has faced a difficult road since being indicted for alleged criminal actions at the U.S. Capitol on Jan. 6, 2021.

“Arguably the most trying situation for McAbee was being denied bail for nearly a year based on video evidence that his attorney now says exonerates him.”

This is how a story in The Epoch Times begins about the strange situation Ronald McAbee found himself in. McAbee had served more than seven years as a sheriff’s deputy and correctional officer in Tennessee and Georgia, and was wearing a “Sheriff” garment that day

During the chaotic situation, McAbee assisted two people who were in trouble. One incident was that “Several times he tried to render lifesaving aid to a dying Rosanne Boyland, 34, of Kennesaw, Georgia,” The Times reported. The other incident was when McAbee saw Metropolitan Police officer Andrew Wyatt down, and tried to help him. That action caused others involved in the riot to call McAbee names. While helping Wyatt, the two exchanged friendly comments.

However, for some reason, Metropolitan Police saw fit to charge McAbee with several crimes, according to The Times. “Charges included assaulting, resisting, or impeding a federal officer, two counts of civil disorder, entering and remaining in a restricted building or grounds with a deadly or dangerous weapon, disorderly and disruptive conduct in a restricted building or grounds with a deadly or dangerous weapon, engaging in physical violence in a restricted building or grounds with a deadly or dangerous weapon, and committing an act of physical violence in the Capitol grounds or buildings.”

From this point, the circus only gets worse. At a detention hearing last August, prosecutors played a video with audio turned off as evidence against McAbee. The magistrate judge ordered McAbee released until his trial.

Prosecutors, not pleased with the judge’s ruling, filed an emergency appeal. In a hearing the same day in U.S. District Court in Washington D.C., the federal judge stayed the order and scheduled hearings on the government’s motion to keep McAbee behind bars until trial. That hearing occurred on Sept. 22, and the judge ordered McAbee to be held in jail without bond.

During that hearing, the judge seemed to give a clue to his eventual decision to hold McAbee without bond. “When being shown a video with McAbee wearing body armor with a patch that read ‘Sheriff,’ the judge said, ‘That’s pretty outrageous,’ according to the official hearing transcript. Later, he said, “These videos are very disturbing,” and he agreed with the prosecutor’s assessment of the evidence.

“So, it appears clearly to this court that the defendant is pulling the officer back into the crowd of other terrorists,” the transcript quotes the judge as saying.

After another hearing on Oct. 13, 2021, the federal judge reversed the magistrate judge’s order, ruling that McAbee should be held pending trial. This despite the original judge’s statement that prosecutors did not show evidence that McAbee had been a danger in the eight months since his arrest, the federal judge still ruled that to protect the community, McAbee must remain in jail.

However, once the audio track of the video prosecutors used to create the image of McAbee as a “terrorist” was played, the story created by the prosecutors, and unquestioned by the federal judge, changed dramatically.

 “A break in McAbee’s case came when video investigator Gary McBride of Decatur, Texas, studied the bodycam footage shown in court, except with the audio track turned on. It painted a vastly different picture of what took place, McBride told The Epoch Times.

“The prosecutors did not play the audio of AW [Andrew Wyatt] and McAbee talking during this point,” McBride stated in his evaluation of the video. “McAbee is trying to save AW. Prosecutors didn’t play that in court.” McAbee is heard telling someone in the crowd who tried to grab at Wyatt, “No!” and “Quit!” He also told the Metropolitan Police that they had a man down, and was telling Wyatt, “I’m one of you, I’m one of you.”

So, we have prosecutors — who almost certainly knew that the audio portion of the video they used as evidence against McAbee would destroy, or at least weaken, their case — presented it to two judges without the audio being played. And the federal judge, who apparently did not ask about their being an audio track, believed the faulty evidence, and reached, and announced the conclusion that the man whose trial he would preside over was a “terrorist.”

This example of “justice” was performed by people who are paid to do their important jobs with honesty and integrity, and to render equal justice under the law. That is what we, as American citizens, expect and deserve. Ronald McAbee did not get justice.

Politics control the nomination process for Supreme Court Justices

President Joe Biden’s Supreme Court nominee brings to the fore several issues. Judge Ketanji Brown Jackson has served as a federal judge on the United States Court of Appeals for the District of Columbia Circuit since 2021. Prior to that, she was a district judge on the United States District Court for the District of Columbia from 2013 to 2021, and was vice chair of the United States Sentencing Commission from 2010 to 2014.

She is expected to be confirmed by the Democrat majority in the Senate Judiciary Committee and in the full Senate, maintaining the current liberal and conservative numbers on the Court.

She has been criticized for her record of letting sex offenders off with sentences well below the recommendations of prosecutors and sentencing guidelines. She defended her actions in the confirmation hearing. That prompted Alabama Republican Attorney General Steve Marshall to comment that such actions raise concerns about her being soft on crime. 

She refused to answer the simple question from Sen. Marsha Blackburn, R-TN, of what is the definition of the word “woman?” Jackson said that she could not define the term. “You can’t,” Blackburn asked? “Not in this context. I’m not a biologist,” Jackson said. 

The same Democrats who so enthusiastically defend this African American woman’s nomination opposed another African American woman nominee several years ago.

Jackson refused to condemn the radical idea of packing the Court to establish an ideological or political majority. Some Supreme Court Justices and other officials have condemned this as dangerous to the ideal of justice, because of the political influence it would inject into judicial matters.

She has embraced radical philosophies, like critical race theory. She was asked about it by Sen. Ted Cruz, R-TX: “Do you think that’s an accurate way of viewing society and the world we live in?”

“Senator, I don’t think so, but I’ve never studied critical race theory, and I’ve never used it,” Jackson responded.

Cruz then said, “you gave a speech in April of 2015 at the University of Chicago in which you described the job you do as a judge.” Cruz then quoted part of her speech: “Sentencing is just plain interesting … because it melds together myriad types of law, criminal law, of course … constitutional law, critical race theory.”

Among those issues is also the controversial one of judicial philosophy, which appears to be a factor in some of the issues noted previously. Jackson appears to be an activist judge, not an originalist. Judicial activism is a dangerous thing for the law and for America.

What is judicial activism? “Judicial activism occurs when judges abandon their responsibility to interpret the Constitution and instead decide cases to advance their preferred policies,” according to the Britannica website.

The other side of that is the conservative, or originalist, philosophy. Originalism holds that the Constitution means what it meant when it was written and passed. If there are good reasons to change some things, it must be done through amendments, not by the actions of judges.

The 11th Chief Justice of the United States, from 1930 to 1941, Chief Justice Charles Evans Hughes, offered the idea that “the Constitution is what the judges say it is.”

This statement is absurd on its face. If words mean only what the reader thinks they mean, or what he or she wants them to mean, the world would turn upside-down.

The Framers of the Constitution carefully wrote that document to address important concepts. They are broad principles. They were not written based upon the minute details of that time, but intended to last into the future. 

If the originalist interpretation leads to unpopular or undesirable things, then the Constitution can be properly amended, but not subjected to the whims of a judge, or a majority of five or more of the nine unelected justices.

Justice Clarence Thomas addressed this question in a 1996 speech. “The Constitution means not what the Court says it does but what the delegates at Philadelphia and at the state ratification conventions understood it to mean ... We as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change. Otherwise we would have adopted the British approach of an unwritten, evolving constitution.”

Despite the fact that Judge Jackson’s supporters condemn how she was questioned, the questions were perfectly acceptable, and many even necessary in a confirmation hearing for such an important post. 

Further, when compared to the horrid and disgraceful treatment by Democrat members of the Judiciary Committee during the confirmation hearings of Supreme Court nominees Brett Kavanaugh and Amy Coney Barrett, Jackson is getting respectful treatment.

And Justice Thomas was also treated contemptibly during his confirmation hearing. Part of his response to his disgusting treatment was, “it is a high-tech lynching for uppity blacks who in any way deign to think for themselves…”

We need justices and judges on the federal bench who understand and respect the broad and sensible principles stated in the Constitution and will adhere to them, rather than supplant them with personal or political ideals. Judge Jackson falls short of this standard.

However, in today’s highly political atmosphere, such ideals will not carry the day.

Trump is now being targeted for “planning” pardons, commutations

 

“How far will Trump go in abusing his pardon authority?” That is the title of Joe Conason’s column. He’s a liberal columnist who apparently has psychic access into Trump’s mind, to wit: “But as he prepares to bestow that favor on Roger Stone …,” Conason wrote. That column suggested that in doing so Trump might open himself up to a criminal investigation, as then-President Bill Clinton did after he pardoned "fugitive financier" Marc Rich on the last day of his presidency, Jan. 20, 2001.

Stone was found guilty by a federal jury on the seven charges that he faced, including lying to Congress, witness tampering and obstruction. That is the part of the Stone story that is pretty straight forward. Regardless of whether you like Stone, whether you trust or approve of Trump, you really ought to fairly consider the various aspects of the Stone investigation and prosecution.

Stone became a subject of interest in the Mueller investigation into who aided Russian interference into the 2016 election. More than a dozen FBI agents wearing night goggles, full SWAT gear, with rifles and side arms, knocked on Stone’s door before dawn in January, 2019, and arrested Stone in his jammies after he answered the door.

Oh, and somehow a CNN news crew just happened to be there on the scene, set up and ready when the SWAT team arrived.

What had Stone done to require a SWAT team with weapons drawn? Murder? Armed robbery? Rape? Gang activity?

Nothing, other than being a Republican and friend of Trump. He could have been served a warrant during waking hours, or even notified by a phone call.

No one — not Stone, not anyone — was charged with a crime of helping the Russians. Stone was convicted of process crimes: crimes he allegedly committed during the investigative process, an investigation which found no crimes of Russian involvement, the purpose of the investigation. He was convicted of obstructing an investigation into a crime that never occurred; an investigation trying to find a crime.

Of the charges against Stone, witness tampering carries the heaviest sentence, up to 20 years. Randy Credico, the witness with whom Stone was convicted of tampering, wrote a letter to the judge in the case, Judge Amy Berman Jackson, asking that Stone not be sent to prison because he didn’t really believe Stone would ever harm him or his dog Bianca, the target of the alleged threat.

So, the alleged victim did not feel any tampering, rose to defend Stone from the charge, but Stone still was convicted of witness tampering.

Many observers are urging Trump to pardon Stone. And there are other odd things about his case and his sentence that should be considered.

Fox News host Tucker Carlson, on his opinion show “Tucker Carlson Tonight,” said, Stone is “A 67-year-old man with no criminal record caught up in the Russia hoax, farce, caught up in an investigation that proved to be fruitless.”

He then listed the following average lengths of time served for certain crimes, for comparison with the prosecution’s recommendation for Stone’s sentence of seven-to-nine years.

“Do you know what the average rapist does in this country? We checked today. Four years. Do you know what the average armed robber gets? Three years. The average thug who violently assaults somebody? Less than a year and a half. But the left, CNN as well, demanding that Roger Stone dies in prison. Hmm. This man needs a pardon.”

Yet the prosecution recommended Roger Stone get a longer sentence for crimes far less serious that killed no one, assaulted no one, robbed no one, and did not tamper with a witness, according to that witness.

Why did a supposedly neutral, objective prosecution team recommend such a severe sentence for a non-violent person with no criminal background? And why did the judge ignore the exculpatory statement by the witness who was the supposed victim of tampering?

There is also a question of the objectivity of at least one of the jurors.

The jury foreperson, Tomeka Hart, is a former Democrat candidate for Congress who in her tweets refers to Trump as #KlanPresident. 

While Hart was serving on the jury, she tweeted about Trump’s impeachment. In a letter to the editor of The New York Times, Hart requested The Times use more direct language accusing Trump of committing a crime in his dealings with Ukraine.

She recently defended the prosecutors for advocating a seven-to-nine-year imprisonment for Stone. Attorney General Bill Barr lowered the recommended sentence to something more normal and reasonable, and the four prosecutors resigned in protest.

Was Hart an objective juror? Did she, as foreperson of the jury, leave her bias aside, the bias she readily showed before, during and after the trial?

Several irregularities exist: The FBI inappropriately raided Stone’s home. Hart should have declared her bias in pre-trial jury forms. The judge should have dropped the tampering charge. It was appropriate for Barr to reduce the sentence recommendation.

As a result of these irregularities, Stone convictions should be overturned, and he should get a new trial. A fair trial. Or, a pardon.

Even Trump friends and Republicans deserve objective justice.

At long last, this investigative exercise is over. Or is it?

Now that Special Counsel Robert Mueller has concluded his investigation, submitted his report to Attorney General William Barr, and has spoken publicly about the report, that more-than two-year, $35 million investigation is over and done.

Personally, upon Mueller’s appointment as Special Counsel, my reaction was decidedly negative. Not because of Mueller himself, who was widely praised, but of the position of special counsel, itself. The record of special counsels, or independent counsels, or special prosecutors, etc., is spotty, at best, and has at times been a significant blot on the concept of justice for all and the rule of law.

Someone who takes on this challenge is taking a chance, and will be judged on his or her results. They cannot afford to fail. If there aren’t ten, twenty or a hundred relevant indictments or pleas, the individual’s reputation will take a big hit. This potential result must have a significant influence on how the ensuing investigation transpires.

History has shown that special counsel investigations are often a license for misfeasance, mischief, and less-than-honorable conduct of the special counsel’s staff.

On that score, my negative response was the correct one.

A special counsel is supposed to be assigned to investigate a known crime when the independence of the people who usually investigate these crimes in the Department of Justice may be in question.

But there was no known crime for Mueller to investigate; his job was to investigate to see if he could find a crime, which was generally imagined to be collusion between Donald Trump and members of his campaign and the Russian effort to affect the outcome of the 2016 election, which Trump won in the traditional manner that American elections are decided.

There was criticism of the investigative team Mueller assembled. The UK Daily Mail reported: “The 16 lawyers known to be operating the Russia probe have previously been found to have made $62,000 in contributions to Democrats but just $2,750 to Republicans, based on Federal Election Records.” The team’s objectivity was suspect.

The special counsel investigation did result in some indictments and guilty pleas. Those indicted in the Russian affair were Russian nationals who will never be put on trial. Most other indictments and pleas were for process crimes or wrongs committed years ago that were unrelated to the campaign and the election, therefore irrelevant to the matter at hand.

Now that the search for a crime is over, Attorney General Barr stands accused of behaving like “the president’s lawyer.” Consider, however, that the attorney general heads the Department of Justice, an Administrative department. As such, the attorney general works for and reports to the President of the United States, Donald Trump.

According to the Department of Justice Website, “The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested.”

Mueller has filed his final report with Attorney General Barr, as he was supposed to do, has closed his office, and held a news conference to comment on the completion of his work.

After all the hoopla of the investigation, Trump supporters hold the same opinion of the investigation as they did at the beginning, and Trump foes hold the same opinion of the Trump as they did before it. No Trump crimes were charged and little of relevance was accomplished.

Alan Dershowitz is Professor Emeritus at the Harvard Law School, self-identifies as a Democrat who voted for Hillary Clinton, but is one of those who can step beyond political affiliation and look objectively at legal situations. 

In a May 29 op-ed for The Hill, Dershowitz cited former FBI Director James Comey’s improper comments about Hillary Clinton and her team’s mishandling of classified information.

“Mueller, however, did even more,” he wrote. “He went beyond the conclusion of his report and gave a political gift to Democrats in Congress who are seeking to institute impeachment proceedings against President Trump. By implying that President Trump might have committed obstruction of justice, Mueller effectively invited Democrats to institute impeachment proceedings. Obstruction of justice is a ‘high crime and misdemeanor’ which, under the Constitution, authorizes impeachment and removal of the president.”

Dershowitz continued: “Until today, I have defended Mueller against the accusations that he is a partisan. I did not believe that he personally favored either the Democrats or the Republicans, or had a point of view on whether President Trump should be impeached. But I have now changed my mind. By putting his thumb, indeed his elbow, on the scale of justice in favor of impeachment based on obstruction of justice, Mueller has revealed his partisan bias. He also has distorted the critical role of a prosecutor in our justice system.”

Perhaps this will at last bring about the end of special counsels. Lives are ruined and crimes created in the special counsel’s efforts to avoid failure. As Dershowitz said, witnesses are bullied to “sing or compose” when under oath, creating process crimes that cost thousands to defend against, and ruin the lives of persons involved.

This lies well beneath the ideal of American justice.

Due process and proving guilt are important principles of fairness

Defending Democrats is not something I feel the need to do very often, but recent developments compel defending those condemned for something without due process.

In America, we live by an important principle: everyone is innocent until proven guilty.

When the hearings for Judge Brett Kavanaugh for appointment to the U.S. Supreme Court began last year, many people automatically believed Kavanaugh was guilty of the accusations against him without having seen or heard anything besides the accusation of wrongdoing that allegedly occurred decades ago.

Today, the Lt. Governor of Virginia, Democrat Justin Fairfax, stands accused of sexual improprieties from years ago. Immediately upon those accusations being made public, there was again the jumping to the conclusion that he was guilty, based upon nothing more than accusations.

Yes, there is more evidence of Fairfax having a connection to each of his two accusers than what was shown against Kavanaugh. But so far it is just an accusation, albeit a somewhat convincing story. Even so, that falls well short of what ought to be required to remove someone from office.

There is a process for removing an official like a lieutenant governor from office. It’s called impeachment and trial. 

If we are so shortsighted as to be willing to demand someone be removed from a position simply because of an accusation, we will have abandoned a critical protection from vicious and unfounded charges that every one of us benefits from.

Never forget: Anyone can accuse anyone of anything at any time. If that is the standard required for trashing someone’s reputation and removing them from a position they hold, we are indeed in trouble as a nation.

The resignations of two other Democrats in high Virginia government offices also are being demanded for activity decades ago. Gov. Ralph Northam and Attorney General Mark Herring both have admitted to appearing in public in “blackface,” being made up to look like African Americans.

Northam first apologized for being in a photo showing a blackface man and another person in a KKK costume, and later denied being one of those two people. He also said later he had participated in a dance contest in blackface as Michael Jackson.

Northam and Herring are also hearing demands for them to resign. If these resignations happen, the new governor for the Commonwealth would be the Speaker of the House of Delegates, who is a Republican.

As much as I personally would like to see a Republican as Governor of Virginia, this is not the way that should be accomplished. Northam and Herring might be racists. This episode of decades ago, however, does not prove that.

Today, such activity as Northam and Herring participated in is identified as wrong. However, a few decades ago, it was not unusual for white folks to appear in blackface for minstrel shows and other performances. Blacks actually were sometimes in those shows. Many times these performances involved a white person playing the part of a black person, but they were not ridiculing or insulting blacks, they were often honoring them.

Perhaps this outrage is due, at least in part, to not knowing much about our history. White people appearing in blackface goes back a long, long way, to the 19^thcentury. More recent Americans to have appeared in blackface include old timers Judy Garland, Al Jolson, Bing Crosby and Bob Hope.

But some current popular folks appearing in blackface include Ted Danson, as his girlfriend, Whoopi Goldberg, looked on laughing. Dan Aykroyd appeared in a movie with Eddie Murphy. And left-media darlings Jimmy Fallon, Jimmy Kimmel, Joy Behar and Sarah Silverman also have painted their faces. So have Billy Crystal, Cyndy Lauper, Robert Downey, Jr. and Jason Aldean.

The key element here is that when Northam and Herring performed these acts, they were not considered wrong. Context is important.

When someone is offended by what someone else does, says or writes, that is not all there is to the story. Being offended has replaced baseball as the National Pastime. It’s almost as if people go to college and major in “how to be offended.”

But just because being offended is popular today does not mean that the offended party is always correct in their reaction to things. And just because someone or some group takes offense at something doesn’t mean we must hasten to pass laws against it. The intent of the person being accused of some social infraction is far more important – it is the most important thing.

Just because one or more people think what someone wrote, spoke or did is bad doesn’t mean that the person intended it that way. The error might well be on the part of the offended party, who doesn’t understand the context, but feels empowered to complain about it.

Furthermore, it is unfair for people to be criticized today for doing things that were common and not unacceptable when they did them years or decades before.

We’ve got to get past this idea of perpetual victimhood, get control of the tendency to believe that our individual feelings are paramount, and return to dealing with things we don’t like in a mature, American fashion.

High crimes and misdemeanors? No. But some very odd courtroom occurrences

Last week was certainly interesting. With a high profile guilty plea, and a surprising not guilty verdict, among other things, it was quite a week.

Michael Flynn, who served as director of the Defense Intelligence Agency in the Obama administration, then briefly as President-elect Donald Trump’s national security advisor, on Friday followed predictions that he would plead guilty to one count of making false statements to the FBI about conversations he had with Russian officials during Trump’s period of transition to the presidency.

This has gotten the Russia-obsessed left all excited in its so-far frustrated grand hopes of showing that Trump should be impeached for interfering in the election. This incident, however, will not satisfy those desires.

As a transition team member, Flynn’s talking to representatives of foreign governments is not illegal, and in fact is routinely done. Sorry, Trump haters, it is not evidence of collusion in the election.

Given all of that, why did Flynn lie about what he discussed with the Russian ambassador? Who knows? He hadn’t done anything illegal, and could simply have declined to talk with the FBI. It’s a mystery. A report in National Review, in fact, says that Flynn’s lies were so small and insignificant a crime that the FBI didn’t think it would prosecute him. And then, the FBI already had transcripts of Flynn’s discussion with the Russian ambassador, so why question him? Could it be they did it in hopes of trapping him in a lie?

A source close to Flynn said that said the investigation has taken a toll on his family’s financial condition and has been emotionally draining, and that he pled guilty to end the process, according to a Fox News story. Following the guilty plea Flynn agreed to cooperate with the FBI’s continuing investigation.

The news of the plea spawned an ABC News story that Flynn would be testifying that he was directed by then-candidate Donald Trump to reach out to Russia during the campaign. As you can imagine, this story created some crazy reactions. The Dow Jones Industrials took a 300-plus point drop. And, Trump-hater Joy Behar on ABC’s “The View” delightedly told the TV audience that, “ABC News’ Brian Ross is reporting Michael Flynn offered full cooperation to the Mueller team and is prepared to testify that as a candidate, Donald Trump directed him to make contact with the Russians! Yes!” Her excited announcement drew enthusiastic responses from her co-hosts and the studio audience.

Unfortunately for all those Trump haters, it was “fake news.” Ross’ report was incorrect, which ABC finally acknowledged after eight hours, and later suspended Ross for his incompetence.

Moving from that fake news to an incomprehensible jury verdict in a tragic death: on a pleasant San Francisco evening a couple and their 32 year-old daughter walked leisurely on Pier 14, when the daughter fell to the ground. Seriously injured, she begged her father, “Dad, help me!” as he held her in his arms. He couldn’t help her and shortly thereafter Kate Steinle was declared dead of a gunshot wound.

At the time the gun went off, it was in the possession of an illegal alien who had been previously deported five times, and had seven felony convictions. Jose Ines Garcia Zarate’s answers to police questions had at least two very different accounts of what happened, but he said the shooting was an accident. One account held that he simply found the gun, which had been stolen from a federal law enforcement officer’s car a week earlier, under a bench wrapped in a tee shirt, and that the weapon accidentally discharged. Another account claimed the gun accidentally discharged. Three times. Another had him shooting at seals in the ocean. The shot, or one of the three shots, ricocheted off the ground and hit Steinle.

CBS News reported “Garcia Zarate had been deported five times and was homeless in San Francisco when he shot Steinle. He had recently completed a prison sentence for illegal re-entry to the U.S. when he was transferred to the San Francisco County jail to face a 20-year-old marijuana charge. 

“Prosecutors dropped that charge,” the CBS report continued, “and the San Francisco sheriff released Zarate from jail despite a federal immigration request to detain him for at least two more days for deportation. The sheriff's department said it was following the city's sanctuary policy of limited cooperation with federal immigration authorities.”

Zarate was charged and tried for first-degree murder, second-degree murder, involuntary manslaughter, assault with a semi-automatic weapon, and possession of a firearm by a felon. He was found not guilty of all but the possession charge.

A person who was in the country illegally for the sixth time and had seven felony convictions was breaking the law by handling a weapon, during which time that weapon (accidentally?) discharged and killed an innocent person.  That is pretty much the definition of involuntary manslaughter.

Many people bear some responsibility for this tragedy. First, Zarate; then, in no particular order, the sheriff; those operating and supporting sanctuary jurisdictions; and the defense attorneys, who put saving their client from his just rewards above their duty to achieve justice.

Will the special counsel investigation produce anything relevant?

How would you like to have a high-profile job with no firm guidelines for what you have to do, and plenty of money to help you hire as many people as you want to help you do whatever it is you decide to do for as long as you want the job? 

If so, you qualify for a job as a Special Counsel at the United States Department of Justice.

But you'll probably have to wait until former FBI Director Robert Mueller finishes his current run as special counsel, and by the time that happens, you may be ready for retirement.

Ostensibly, this special counsel is investigating possible Russian influence in the 2016 election, something for which no evidence was found during months of research prior to the special counsel’s appointment.

In appointing the special counsel, Deputy Attorney General Rod J. Rosenstein said: “My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination.” The job of the special counsel, then, is what?

Since no crime was identified needing investigation, Mueller has carte blanche to investigate whomever he wants for whatever he can find to assist him in whatever it is that he has decided to try to prove actually happened.

This is not an attack on Robert Mueller; it is about a process that is often well below the extraordinary standards of an honest, limited and responsive government of the people intended “to secure the blessings of liberty to ourselves and our posterity,” as established by the U.S. Constitution.

Mueller, in fact, was acknowledged as an honorable man and competent attorney when he was appointed. Back in May, conservative columnist Hugh Hewitt wrote this: “In Mueller, Deputy Attorney General Rod Rosenstein has made an excellent choice that will allow Republicans to again concentrate on turning the country around.”

However, Hewitt went on to say, “It’s true that I have opposed a special prosecutor in the past,” and one reason was that “if the allegations of the politicization of the IRS during Barack Obama’s presidency didn’t warrant a special prosecutor, then this one certainly isn’t necessary now.”

Good, ethical guy or not, having accepted the job, Mueller is now under the gun to produce something. Faced with humiliation after hiring 17 Democrat lawyers, spending thousands or millions of dollars on a months-long, open-ended investigation and coming away empty handed is a result no self-respecting special counsel wants on their record.

An article in The Washington Post notes, “Thus, the idea of a special prosecutor makes sense, in theory. In practice, some investigations headed by special prosecutors have rung up huge tabs while producing modest results.”

To wit: Back in 2003, a CIA employee named Valerie Plame was “outed,” meaning her name and association with the CIA became public knowledge. An Office of the Special Counsel investigation ensued, with Patrick Fitzgerald in charge. After the investigation, a George W. Bush administration official, Lewis “Scooter” Libby, was charged, tried and convicted of making false statements to the grand jury and federal investigators. And, a New York Times reporter, Judith Miller, spent twelve weeks in jail for protecting the identity of a source from the grand jury.

In summary: a crime was committed, an investigation began, a journalist went to jail for protecting a source, a person was convicted for lying about things unrelated to solving the crime, and no one was found guilty of the crime. Such is what can happen with special counsel investigations.

In the current incarnation, an effort is under way allegedly to find someone associated with President Donald Trump who perhaps did something naughty he/she shouldn’t have done with the Russians during the campaign. Thus far the apparent focus is on Paul Manafort, who managed Donald Trump’s campaign until August of 2016, and who lived in Trump Tower where Trump lived during the campaign.

Manafort was the subject of federal wiretaps before the campaign in 2014, and again in 2016, either during the campaign or perhaps after he had left it. It is fair to ask who else, if anyone, in Trump Tower was wiretapped during the campaign.

When Trump suggested his campaign had been wiretapped, Democrats, liberals and much of the media ridiculed him. Could they have been wrong?

More recently, Mueller and his investigation have come under some criticism, with some characterizing the exercise as a waste of time and a distraction, others calling it a partisan witch-hunt, and one person suggesting a serious crime is being committed.

A retired United States Navy Commander has accused Mueller and other Federal Bureau of Investigation employees of treason for supposedly trying to sabotage President Donald Trump.

Mueller’s team may find an actual election-related crime was committed. Or, more likely, the only wrongs it discovers are unrelated to the Russians or the election, but can serve as leverage to help the special counsel persuade someone to “flip” and provide incriminating information against someone in the Trump campaign.

There are at least 5,000 federal criminal laws, and between 10,000 and 300,000 regulations that can be enforced criminally. Odds are that someone from the Trump campaign will have violated one of them.

The debate over the death penalty in the United States begins anew

Since Donald Trump defeated Hillary Clinton in the Electoral College to win the presidency, and especially since Trump was sworn in, the news has been filled with all manner of items, some of them silly, nit-picking and embarrassing for the media, and others of varying degrees of importance and interest.

Among the actual news items was the choice of the excellent Judge Neil Gorsuch to fill the vacancy on the Supreme Court and the battle that ensued to confirm him; the Syrian air base strike and the MOAB bombing of an ISIS tunnel/cave installation in Afghanistan; and more recently the situation in Arkansas where the state intended to execute eight death row inmates in the 11 days remaining before the end of April when one of the drugs used in executions reached its expiration date.

This latter development produced quite a lot of comment, most of it negative from opponents of the death penalty.

The death penalty is sanctioned through the 5^th and 14^th Amendments to the U.S. Constitution, and each death row inmate had been convicted and had many years to appeal their sentence or conviction, so why so much controversy? Many were horrified not about the death penalty itself, but that Arkansas would conduct so many executions in such a short period.

The death penalty is a matter of long, spirited debate, notwithstanding its constitutional and Biblical validations.

The religious aspect is important in the United States, since among the volumes of things former President Barack Obama misunderstands about America is its still-strong religious nature. Of the 35,000 participants from all 50 states polled in a 2014 Pew Research Center study of Religion and Public Life, Christians accounted for 70 percent of participants, and more than 75 percent claimed some religious affiliation.

While our government is not founded on any set of religious beliefs, people with religious beliefs have been a major segment of the population since the nation’s founding, and their beliefs heavily influenced the founding principles, and that influence still exists today.

Many Christians, along with people holding other religious beliefs, and still others who do not cite religion at all, object to the death penalty on its failure of compassion. “How can religious and other compassionate people indulge in such a barbaric act?” the argument goes.

Steve Stephens, a 37-year-old black man, was having trouble with his girlfriend, so naturally he decided the solution was to randomly pick out someone to kill. After mentioning the woman’s name to 74 year-old Robert Godwin Sr., also a black man that he came upon while searching for a victim, he shot and killed the unsuspecting and totally innocent Godwin.

Stephens’ stupid and vicious murder highlights this issue. Many believe that someone who intentionally and deliberately murders another person and inflicts shock and grief on that person’s family and friends somehow is entitled to the compassion the murderer sadistically denied the victim(s).

One religious argument against executions is that it denies the criminal the opportunity to repent and even use his/her experience to try to turn others to religion and away from crime.

Others believe, however, the condemned deserves no consideration or compassion when his or her justice is rendered. “Should not that person suffer at least as much as the victim and those close to the victim?” this argument goes.

Since the U.S. Supreme Court decision in 1972 allowed the resumption of the death penalty, its use has dropped off substantially. While 31 states still legally allow executions, ten of them have executed no one in the last ten years, and 26 have executed no one in the last five years.

Several reasons are cited: the possibility of executing an innocent person; botched executions; a decline in the crime rate; and the cost of fighting those opposing the imposition of the death penalty in capital cases.

There are five legal methods of execution – firing squad, gas chamber, hanging, electrocution, and lethal injection – and lethal injection is the hands-down preferred method. Much of the opposition to the other four comes down to how “unpleasant” each of those methods is to the condemned, with lethal injection normally being the least uncomfortable. However, even lethal injections sometimes cause suffering to the condemned.

There is an on-going debate over whether the United States should have a death penalty. Another debate centers on making the execution as easy on the condemned as possible.

Perhaps this represents a true expression of compassion, or maybe it is one more step toward making executions so difficult and expensive that eventually it will be abandoned, in favor of keeping vicious criminals alive and relatively comfortable in prison for the rest of their lives at a tremendous cost to taxpayers.

As long as there is a death penalty, someone who is absolutely proven guilty of committing a capital crime and sentenced to death should collect his or her just reward in a reasonable amount of time (which will be in fewer than 10 or 20 years), as efficiently as possible, and as inexpensively as possible. If it hurts a little, or a lot, too bad.

Of all factors involved, the concerns of the criminal come last.

The willful subversion of critical institutions threatens America

As the Constitutional Convention of 1787 was wrapping up, Benjamin Franklin was asked this question: “Well Doctor what have we got, a republic or a monarchy.”  Franklin replied, “A republic ... if you can keep it.”

That has been one of America’s greatest challenges ever since, and there certainly are numerous discernible threats to our republic today.

Certain of our institutions play a critical role in sustaining the republic and promoting and protecting the unique character of the United States of America, and they therefore have a tremendous obligation to operate ethically and honorably. To the extent that they abandon their obligation, the country’s fundamental character is threatened.

Those institutions are: the justice system, the education system, and the information media.

Imagine you have a business renting apartments. One of your tenants, who has rented a place for $1,500 a month for three years sends you a check for only $900 for the current month.

You contact the tenant and are told that he views the lease that both you and he signed as a “living document,” the meaning of which may be altered as circumstances change. Having lost the job that paid $73,000 a year, his new job pays only $45,000, and he says he can now only afford $900 rent a month.

That is precisely the rationale that activist judges apply when they abandon the clear language of the U.S. Constitution and the laws of the land to make rulings they say are in line with current circumstances and the “mood” of the country, and because the Founders and those who enacted older laws were unable at that time to imagine current circumstances, that old stuff must be modernized.

However, the laws or Constitutional principles that activist judges disagree with must be amended or repealed through existing formal processes, not ignored or altered because they are viewed as inconvenient. If momentary interpretations are all that matter, and the Constitution is merely a “living document,” we don’t have a Constitution and we are not a nation of laws.

A nation needs its history and culture – all of it: the good, the bad, and the ugly – to be passed down from generation to generation so that its people will know who they are and where the came from, and can properly determine where they want to go and why.

While families should pass much of this along to children, we largely entrust this duty to formal education. To guide the learning process and assist students in learning an array of important and useful subjects and life lessons, we employ teachers, professors, instructors, and such, who coach and assist students.

Most of us had at least some teachers, professors, coaches who inspired us and helped us learn difficult subject matter, develop our skills, and learn how to think critically and logically. Hopefully, we did not have any that strayed from their professional duties and tried to tell us what to think about things, rather than developing the ability to think for ourselves.

Today, among the great number of effective educators there are too many who stray from the straight and narrow, especially in colleges and universities, where education too often takes a back seat to political and ideological indoctrination and politically correct policies. Imposing beliefs on students is worse than merely disrespecting the student; it is an outright abandonment of integrity and principle.

Along with an accurate base of knowledge about the country’s founding and history presented to them in schools, the people need to be well informed about current events. Information journalism contains two parts, and they must be kept separate. One is news about events, which must be accurate, honest and objective. The other is opinion, and must be clearly defined and omitted from straight news.

But far too often, opinion and political considerations sneak into news reporting, and also into the selection of what news gets reported and how it is reported, as well as what news does not get coverage. This is like playing golf blindfolded. You might find your driver, your ball and a tee, and you might tee up and actually hit the ball, but after that, you are literally in the dark, depending on the honesty of those around you to accurately describe the situation for you.

The American Left – liberals, progressives, socialists, etc. – has a vision of America that is in many ways sharply at odds with the founding principles. Both beneficial and harmful ideas that the Left pursues are at odds with the ideal of limited government, because using government to force things on the people is the Left’s tool of choice.

Fortunately, there are obstacles to using government to “fundamentally transform the United States of America,” as a former leftist president pledged. These obstacles are difficult to remove, as they should be. So the Left resorts not infrequently to re-interpreting the Constitution and the laws; managing and manipulating the information coming through much of the mass media; and sometimes indoctrinating children.

We all need to remember that worthy and broadly beneficial ideas will sell themselves; they don’t need people to take short cuts or cheat to get them accepted.

What happens when judges abandon the Constitution and the law?

If you have read legal documents you will likely have noticed how detailed, specific and often obtuse the language is. The purpose of such language is to assure that the intent of the document is clearly set forth, and this language is well understood by lawyers.

However, despite the careful legal wording of President Donald Trump’s Executive Order (EO) temporarily suspending travel to the U.S. from seven countries with close ties to terrorism, U.S. District Judge James Robart in Washington found problems with the document last month, and issued a temporary stay. A revised second version of that EO, rewritten to avoid the objectionable parts of the first one, including removing one of the seven countries on the list, was found unacceptable by two other federal judges, U.S. District Court Judge Derrick Watson in Hawaii, and Maryland U.S. District Court Judge Theodore Chuang.

The revised document may as well have been written in the language of the Klingons, because these two judges ignored the Order itself, rejecting the travel suspension due to negative statements about Muslim immigrants Trump made during the campaign.

Even though the people who have to implement the EO must do only what it says, the judges, in their infinite wisdom, decided that what they imagine to be the thinking of the president is more important than what the document actually mandates, even though those who follow the EO will have no knowledge of what the president thinks, and therefore no obligation to implement those opinions.

Apparently, these federal judges are confused about their jobs or perhaps just don’t care about professional ethics or their sworn duties. They apparently believe that in ruling on a legal document they should ignore the actual document that is being challenged, and instead rely on speculation about the opinions of the document’s creator, and act to protect certain rights of immigrants and foreigners that the Constitution does not assign to them.

Under 8 U.S. Code § 1182(f) Congress granted the President broad discretion to suspend the entry of “any class of aliens” into the United States, and independently broad discretion over the refugee program.

That section reads: “Suspension of entry or imposition of restrictions by President - Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” This section of the law goes on to assign the Attorney General authority over activities by airlines bringing in non-citizen passengers, further assigning complete authority over entry to the country to the executive branch of the government, not the judiciary.

The law is crystal clear in its meaning, and does not provide as exceptions to the power of the President the personal opinions of federal judges or the beliefs or motives that these unelected referees ascribe to the president.

Perhaps the reason these judges didn’t want to rule on the actual language and effect of the Order is that it disagrees with their personal opinions. The Heritage Foundation’s Hans Von Spakovsky, a former Department of Justice lawyer, told Breitbart, “I don’t think [these judges] have any professional shame about it — in fact, they’re being applauded by newspaper editors for actually ignoring the law and [Supreme Court] rulings based on their own personal policy preferences.”

He notes that, despite the plain text of the law and prior Supreme Court decisions, these rulings are “destructive of the rule of law, which is the entire basis of our Republic.” This, he said, “is a very bad development that threatens our democracy … [and] it looks like it is going to get worse [because] we’re going to have more and more litigation, and it is very clear that the progressive left wants to use the courts to fight the way our democracy works,” he said, adding “I think what they doing is very anti-democratic.”

Indeed. What can be worse for a country that lives by the rule of law than to have some judges that do not follow or honor the law or the Constitution, but instead make law from the bench or twist laws to suit their personal or political preferences? That is what liberal judges do, and this behavior has reached crisis proportions.

These legal rulings raise important questions:

What is the proper response to a federal court ruling that is so plainly contrary to the law? Should the Trump administration follow a clearly illegal ruling and attempt to overturn it though a lengthy appeal process, or defy the federal courts?

What should happen to judges who issue rulings are at odds with laws and the Constitution that they are sworn to uphold?

Aren’t these judges directly responsible for any harm done to American citizens as a result of persons with the intent to do harm getting into the country by virtue of their rulings?