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Ruth Bader Ginsburg – Politician
More than a few eyebrows have been raised recently about the conspicuous entry of another distinguished voice into the maelstrom of the current presidential race. Justice Ruth Bader Ginsburg has taken up herself in a series of interviews and pronouncements to lace into Donald Trump and all but endorse Hillary Clinton as President of the United States. In her discussion with New York Times Supreme Court correspondent Adam Liptak, she sounded just like another partisan political figure opining in the sad state of politics in the United States.
At one level there was nothing surprising in these particular remarks. Anyone who has paid the slightest attention to her work on and off the Court in recent years knows of her diehard liberal views on virtually all these issues. Her denunciations of Donald Trump, her endorsement of Merrick Garland for the open seat on the Supreme Court, her criticism of the Senate to move forward on the nomination, her intense dislike of Heller on the Second Amendment, and of Citizens United on First Amendment protection of corporate speech are all part of the basic liberal playbook to which she subscribes. Only her reference to her late husband Martin Ginsburg that “Now it’s time for us to move to New Zealand,” gives some wry sense of the level of her discontent.
Yet, even if predictable, it is also disquieting. Her current views show a quest for the lime light that is inconsistent, I think, with the effort of a justice of the Supreme Court, no matter how passionate her views, to keep to the judicial role exclusively, so as to avoid even the appearance of bias in her decisions. But anyone who looks at the picture that the New Republic took of her on September 28, 2014 bathed in red, while wearing of judicial robes in a grand room in the Supreme Court building, knows exactly what is going on even before reading the title attached to Jeffrey Rosen’s piece, “Ruth Bader Ginsburg is an American Hero.” Not exactly the title that precedes a detailed dissection of her written opinions.
Therein lies the problem. The Justices should be subject to close scrutiny in all they write, by their supporters as well as their detractors. But the worshipful stories undercut any form of critical intelligence. In an odd sense they are worrisome precisely because her liberal supporters don’t even think that they have to mount a defense of key decisions.
But in my view, however, there is a lot of work to be done, given the strength of my disagreement with many of her views. I think that Citizens United was rightly decided, and that political speech through the corporate form should be protected as much as individual speech. Banning political speech before election time cuts to the heart of First Amendment protection. Similarly, knocking down the contraceptive mandate in Hobby Lobby was also the right choice. It seems utterly indefensible that the state should ever put any individual or firm to the choice between abandoning their core religious beliefs and being able to participate as equal citizens in the marketplace. Conditions of universal service are appropriate for monopoly businesses, but not for employers or vendors in competitive markets. Nor do I think that it is appropriate in cases like Friedsrichs v. California Teachers Association to force teachers to support a union that they do not wish to join in order to continue with their public employment.
All of these cases involve some application of the doctrine of unconstitutional conditions, which in former times was constantly (and correctly) invoked by left to limit the choices that a monopoly government could impose on its citizens. No one could be asked to swear that he was not a communist in order to get a real estate tax exemption or to become a member of the bar. No one could be forced to waive his or her Fourth Amendment rights against unreasonable searches and seizures to drive on the public highways. Here, then, is the larger danger of the Ginsburg forays into public policy. There is not so much as a syllable of reasoned argument in support any of the positions she endorses. It is all ipse dixit.
That is not how public disagreement should be voiced. That point applies with equal forces to cases where I agree with her general approach. I have long been skeptical that the Second Amendment should be read disconnected from the state militias to which it refers in its opening clause, and I think that in dealing with affirmative action programs, as in Fisher v. United States, that the state should have greater discretion in how it runs its own businesses than how it regulates others.
So here is the deeper concern. The entire pattern of adoration is not only made to raise the prestige of Justice Ginsburg, it is also meant to silence those who disagree with her. After all, if the points are as obvious her comments suggest, what reasonable person could disagree with her? Modern progressivism does not represent a new form of intellectual openness. All too often it represents a substitution of some new dogmatism for some old one.
Published in Law
There is a statute imposing criminal liability for mishandling of classified information. That is the statute that Comey declined to prosecute on. What I am saying is that there is no separate criminal statute for failure to maintain government records. Clinton clearly violated legal requirements on the maintenance of government records, but there is no criminal penalty for that. Clinton arguably violated the criminal law prohibiting mishandling of classified information, but the most you could prove about her mens rea is that she was grossly negligent, and “gross negligence” as a basis for this kind of crime is arguably Constitutionally infirm and has never actually been the basis for such a prosecution. Those are significant factors that prosecutors and law enforcement think about when deciding to bring a prosecution.
Those advocating prosecution for Clinton are looking at her case in a vacuum, but the DOJ and FBI have to think about the cases in context. That context includes all other prosecutions.
Paul,
There were over 100 emails and email chains that Comey said were marked as classified at the time she was both sending and receiving them. You are misquoting and have been doing so since the beginning of the post.
Comey agrees to the illegality of what she has done. He holds only that her intent cannot be proved. I would put it to you that either her intent is self-evident and Comey is full of nonsense or that she is irresponsible enough to have her security clearance removed and so irrational as to require being committed to an institution. You can have it one way or the other. Either Comey is a man of integrity and she belongs in a mental institution or Comey is a joke and she belongs behind bars.
Either way, Hillary Clinton is disqualified from higher office and should never be allowed to work for the federal government again.
Regards,
Jim
She would not have been my first interview, but I probably would have done her interview sooner than the FBI did. I would want to line up all the documents first, and then get some helpful testimony from her underlings, before conducting the interview.
As to the structure of the entire investigation, remember that they did offer immunity to at least one Clinton underling. To me, that suggests that they were playing this straight and trying to get as much ammo as possible before sitting down with her. If they were really structuring the investigation to achieve a particular result, they never would have offered the underling immunity.
My “ignorance” knew what his answer was going to be even before he started his investigation. Your “well ordered” society returned the exact results most of us expected it would. As for how criminal law should function, not sure, but how it does function is that it is very heavy handed at the lower levels of society and gets increasingly light handed as you go up the social scale so when you are in HRC’s position it is just a feather’s touch. A show investigation and an exoneration to give it the thinnest veneer of respectability and rule of law, then the law lessor mortals would quake under is ignored. That is why you have BLM in the streets, they do not like the heavy hand at their throat, while folk like me have issues with the facade of law at the very top. It all part of the same thing.
You are mistaken on this point. He never mentioned classification markings in the video you posted. (If I am wrong about this, could you direct me to the timestamp?) In his announcement on July 5, Comey stated as follows:
Separately, it is important to say something about the marking of classified information. Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information. But even if information is not marked “classified” in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.
https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b.-comey-on-the-investigation-of-secretary-hillary-clintons-use-of-a-personal-e-mail-system. During the hearing, he revealed that this “very small number” was three, and it was later revealed that these marking were incorrect.
Let me ask you a question: if there were “hundreds” of emails, then why was time spent on the three incorrect/out-of-date classification markings?
I agree that Clinton’s security clearance should be revoked. But that is in the province of the State Department unless she is elected President (at which point her clearance is automatic under the statute), not with Comey. Comey could only decide whether to recommend prosecution.
As for her qualifications, I would agree with you in a normal election. The problem is that Trump is equally unqualified. He has made statements praising Saddam Hussein’s handling of terrorists very recently (Iraq was state sponsor of terrorism under Hussein’s government, and has advocated the commission of war crimes (specifically, the targeting of non-combatants and innocents). What effect are statements like Trump’s likely to have on our enemies? On our allies?
I won’t vote for Clinton, but I sure as hell won’t vote for Trump.
Just a gentle reminder, folks. There is not a one of us who didn’t commit at least one criminal offense yesterday. Yes, yesterday and every day. Somewhere in the umpty-ump thousands of pages of statues and regulations that control every aspect of our lives, there is at least one law which you ran afoul of. Something in your house or business did not meet safety codes. Or you failed to fill out some form. Maybe your auto insurance or registration lapsed and you were a few days late in renewing. Or you jaywalked. Or had a couple of drinks at dinner and then drove home. Or used your wife’s prescription medicine rather than go see the doctor. Or your party was louder than is permissible under your local noise ordinance. Or something.
I see a lot of complaining here about a double standard for the rich and powerful. The fact is, though, that the poor and insignificant commit all kinds of criminal acts all the time, and are not prosecuted. In almost all cases, if no one gets hurt and no one is complaining, criminal charges are not pursued. If everyone who committed any violation that is, at least theoretically, punishable by jail time, paid the fullest penalty under the law, then there would be nobody left on the outside of the cells to feed the prisoners.
Paul,
Your confession that you will never vote for Trump says a great deal about your obsession with defending this decision not to prosecute. However, I will continue to try to help you. Please watch this video and listen closely. It was put together by CNN (not Fox) and has portions of Comey’s press conference v. Hillary’s public statements. He addresses the very issue about the classified emails sent and received that “were classified at the time they were sent or received”.
You do understand that it was anyone in that position’s responsibility to recognize an email that should be classified even though it was not marked. How anyone could possibly claim to have an unauthorized, unprotected server handle the most sensitive communications for the Department of State for 4 years and not know is so far beyond a reasonable doubt it boggles the mind. She has a Yale Law Degree. She is a former Senator of the United States. She must have received the drill on classified material 20 times. She signed a form stating criminal penalties for the mishandling of documents. The facts are clear she broke multiple federal laws and perjured herself before Congress destroying evidence and obstructing Justice. Really, intent is a ridiculous issue to bring up. Any serious defense of her against criminal charge should involve an insanity plea.
Regards,
Jim
Look, I am not sure what it says about you that you feel the need to attack an honorable man like Jim Comey, who has a long and well-earned reputation for fairness and commitment to his country and family, and who–until he announced his decision in the Clinton case–was widely proclaimed to be a paragon of virtue by many of the GOP house members now attacking him. Maybe you are trying to justify your support for Trump, a detestable, immoral, and corrupt fool who has a reputation for dishonest business practices and marital infidelity. That’s a question only you can answer.
What I have been trying to explain in all these posts is that there are a number of very good and legally justifiable reasons why he declined to prosecute. Those reasons involve some less widely reported facts and some legal arguments that have been well articulated. If you find those facts or legal arguments unconvincing, that’s fine. But to argue that this is a clear-cut case where all the facts show that Comey made the wrong call is laughable.
I understand fully that markings are not dispositive, but they can certainly be helpful in proving intent in a criminal case. Will you concede I did not misquote anything about markings above?
If my “confession” that I won’t vote for Trump says a lot about my view on the substance of the criminal prosecution, then what does your support for him say about your view?
Fair enough – though I think a more reasonable term is “explained,” not “debunked.” Debunked seems to imply a lack of any reasonable basis for concern in the first place. Even Comey acknowledged that the email was concerning. The use of the word “nonpaper” was the ambiguity I was referring to.
The most dangerous lie in American politics is that the Judiciary is somehow apolitical.
It is the most political branch, deluded by the notion that democracy is somehow less damaging than personal ego or ideology. Where do we get this idea that people trained as lawyers (some offense intended) are somehow naturally *less* inclined than others to corruption, stupidity, and bias?
The legal profession lies to itself about absurdities like lifetime tenure leading to the impartiality of judges. Being untethered from the masses does not make you untethered from everything.
There will always be a corrupting influence. Always.
I will concede that you are obscuring what is of maximum relevance. Hillary Clinton knowingly sent and received classified emails on an unprotected, unauthorized server by choice. She did this knowingly over a span of 4 years. Attempts by the IG of the State Dept to reel in her behavior were rebuffed. She committed perjury repeatedly to conceal these facts.
Regards,
Jim
This is because Comey (1) created a new standard which does not exist, being sloppy was enough for prosecution and (2) almost explicitly made the argument Hillary *should* be prosecuted but wasn’t going to be because reasons.
People — particularly lawyers — can be corrupted quite easily when under pressure or in the presence of political power.
It’s a fallacy to assume that there are even “good people”, let alone people who are “good” forever. You don’t have to believe in sin, per se, to believe in original sin.
Lifetime tenure means once you are in you are not beholden to anyone to stay in. I’ve never met anyone (lawyer or otherwise) who suggests its a guaranty of impartiality. If you want to ding the legal profession for lying, try starting with the big one – rules on the unlicensed practice of law are for the benefit of the public.
I’m not aware of her ever speaking to this under oath. She clearly lied, but you have to be under oath for that to rise to perjury.
Numerous other offenses including lying to congress (not under oath).
Interestingly, if she knowingly lied to the FBI, she can be charged under the false statements statute, 18 U.S.C. sect. 1001. No oath required.
Also, unless I am mistaken, she discussed her email preservation during hearings held by the House Select Committee on Benghazi. It appears that Congress would be within its rights to request that the FBI investigate those misstatements.
To those who seem to be expressing the belief that “can be charged” is the same as “must be charged,” I have a question. Fraud is not only a civil tort, but is also a criminal offense in all American jurisdictions. If Trump loses his Trump University class action fraud trial, that means that a jury will have said that he committed fraud. Repeatedly and systematically. That would be a finding by a jury, after a full trial. That is certainly enough to conclude that the facts are present to support a criminal prosecution. So if Trump loses that trial, will you be demanding that he be prosecuted?
Tell that to Martha Stewart.
Her testimony in front of the Benghazi committee was perjury & contempt of Congress. Her refusal to turn over all of the documents when subpoenaed was obstruction of Justice. Exactly how many crimes need she be already guilty of beyond reasonable doubt before you would recommend prosecution?
Regards,
Jim
Paul,
She clearly perjured herself in the Benghazi hearing. Also, the documents (emails) were subpoenaed. She didn’t turn them over but attempted to destroy them. She is guilty of Obstruction of Justice. If Comey was willing to believe that someone with a Yale Law Degree, a former Senator who served on the Armed Services Committee from 2003-2009, didn’t know exactly what she was doing when sending classified documents over her private, unprotected, unauthorized server, then Comey is willing to believe anything. Obviously, the FBI interview conducted under his supervision was a joke.
Regards,
Jim
Setting aside the classified information mishandling charges that we have already discussed ad nauseum, the charge for destruction of documents would be obstruction of Congressional proceedings under 18 U.S.C. sect. 1505 (relevant text below). I believe that, like perjury before a Congressional committee, the DOJ/FBI only prosecutes those cases when referred to by the House or Senate. But if a referral is issued and there is some evidence that can be presented to a jury that she knowingly directed her lawyers to delete relevant documents, then I agree with you completely.
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“Whoever corruptly … obstructs, or impedes or endeavors to influence, obstruct, or impede … the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by … any committee of either House … [s]hall be fined under this title, imprisoned not more than 5 years.”
Paul,
Then you are telling me either she stands trial or her lawyers for obstruction. Do you think they will be willing to sacrifice themselves to maintain the lie that she didn’t know and they acted to destroy subpoenaed evidence on their own?
Regards,
Jim
I think that all I can say is I wouldn’t want to be in their shoes right now.
It wouldn’t help the lawyers’ position one bit if they said they were only following their client’s orders to destroy evidence. Any lawyer knows that you can’t do that, no matter what your client says. You either store the documents, or you return them to the client. And in the case of a hard drive, even if you were to delete certain files, you would not then scrub the hard drive unless it was your goal to conceal information. Actually, I don’t believe Hillary’s whole story on this point. No lawyer would do that.