Archives: 12/2009

Weekend Links

  • How the president’s policies are holding back the economy: “Right now, the best thing Washington can do for our economy is to simply stop what it has been doing.”

Judge Dresses Down Federal Prosecutors

When we hear the phrase “witness intimidation” we’re likely to think of a gang member who is on trial or about to go on trial and, to evade justice, tries to have key witnesses change their story so the case will collapse.  We hardly ever hear about cases where the prosecutors try to intimidate witnesses.  But it happens.  In an extraordinary proceeding this week in Santa Ana, CA, a federal judge reprimanded prosecutors for contemptible conduct toward witnesses.  This story needs telling.

Here’s the gist of the case: William Ruehle was charged with criminal securities law violations.  Mr. Ruehle’s defense was that his actions were always made in good faith – that he did not act with criminal intent.  That’s an important aspect of the case.  To take another example that most people can relate to, we all know the tax code is very complicated.  People (including IRS employees) make honest mistakes about it all the time.  Under the law, the government can only make a case for criminal tax evasion if it can persuade a jury that the person accused knew what the tax law required and proceeded to violate it anyway.  

Crucial to Mr. Ruehle’s defense were three witnesses whom he wanted to call on his behalf at trial.  They were familiar with his business dealings and would support his good faith defense.  That was the plan anyway. 

In preparation for trial,  prosecutors embarked on an outrageous mission to “flip” or  destroy the defense witnesses.  One lady was fired from her job after prosecutors called her employer and spread innuendo.  Prosecutors then pressured her into pleading guilty to some offense that allegedly took place seven years earlier  – a very peculiar prosecution under the surrounding circumstances.  And then her plea deal was contingent upon this lady changing her story to support the prosecution, not Mr. Ruehle.  Taking all this in, the judge said he had ”absolutely no confidence that any portion of [this lady’s] testimony was based upon her own independent recollection of events as opposed to what the government thought her recollection should be on those events.” 

And that’s just one witness.  It gets worse.

Here, in summary, is how Judge Cormac J. Carney viewed the case:

I have a solemn obligation to hold the government to the Constitution.  I’m doing nothing more and nothing less.  And I ask my critics to put themselves in the shoes of the accused. 

You are charged with serious crimes and, if convicted on them, you will spend the rest of your life in prison.  You only have three witnesses to prove your innocence and the government has intimidated and improperly influenced each one of them.  Is that fair? Is that justice?  I say absolutely not.

Judge Carney proceeded to dismiss the case before the jury could begin its deliberations because the government’s conduct was so egregious. 

Some of the defense attorneys in the courtroom said that they had started their careers as prosecutors and that they were well aware that there is a “cloak of credibility” when prosecutors represent events to employers, reporters, and judges.   (Ask yourself what you would think if a prosecutor told you that “Mary Smith is an unindicted co-conspirator in our on-going investigation…”) Watching this judge correct a miscarriage of justice, they said, was one of the most remarkable events they had witnessed in their legal careers.  They hoped the judge’s ruling would be heard “throughout the country.”

The ruling is only about 15 pages, double spaced.  Read the whole thing (pdf).  (Really – do it this time!)  I was obviously not present during the proceedings in this case, but it is an extraordinary move for a federal judge to dismiss a case, with prejudice, during a trial.  It is my view that the conduct  of the prosecution must have been truly blatant. 

This seems like a true scandal.  In a just world, the prosecutors would now be investigated for criminal witness intimidation and for professional misconduct by bar associations.  Judge Carney’s opinion should be reprinted verbatim in law school textbooks to teach future judges to keep their eyes open, to keep an open mind, to be impartial, and to beware of those with a “win-at-all-costs” mentality.

For related Cato work, go herehere, and here.

Obama’s Copenhagen Speech

Politico asks, “Was he convincing?”

My response:

In Copenhagen this morning, President Obama convinced only those who want to believe — of which, regrettably, there is no shortage.  Notice how he began, utterly without doubt:  “You would not be here unless you, like me, were convinced that this danger is real.  This is not fiction, this is science.”  The implicit certitude is no part of real science, of course.  But then the president, like the environmental zealots cheering him in Copenhagen, is not really interested in real science.  Theirs, ultimately, is a political agenda.  How else to explain the corruption of science that the East Anglia Climate Research email scandal has brought to light, and the efforts, presently, to dismiss the scandal as having no bearing on the evidence of climate change?  If that were so, then why these efforts, or the earlier suppression of contrary or mitigating evidence that is the heart of the scandal?

We find such an effort in this morning’s Washington Post, by one of those at the center of the scandal, Penn State’s Professor Michael E. Mann.  Set aside his opening gambit — “I cannot condone some things that colleagues of mine wrote or requested” — this author of the famous, now infamous, “hockey stick” article seems not to recognize himself in Climategate.  That he then goes after Sarah Palin as his critic suggests only that on a witness stand, confronted by his real critics, he’d be reduced to tears by even a mediocre lawyer.  One such real critic is my colleague, climatologist Patrick J. Michaels, who documents the scandal and its implications for science in exquisite detail in this morning’s Wall Street Journal.

But to return to the president and his speech, having uncritically subscribed to the science of global warming, Mr. Obama then lays out an ambitious policy agenda for the nation.  We will meet our responsibility, he says, by phasing out fossil fuel subsidies (which pale in comparison to the renewable energy subsidies that alone make them economically feasible), we will put our people to work increasing efficiency in our homes and buildings, and we will pursue “comprehensive legislation to transform to a clean energy economy.”

Mark that word “legislation,” because at the end of his speech the president said:  ”America has made our choice.  We have charted our course, we have made our commitments, and we will do what we say.”  But we haven’t made “our choice” — cap and trade, to take just one example, has gone nowhere in the Senate — even if Obama has made “our commitments.”  And that brings us to a fundamental question:  Can the president, with no input from a recalcitrant Congress, commit the nation to the radical economic conversion he promises?

Environmental zealots say he can.  Look at the report released last week by the Climate Law Institute’s Center for Biological Diversity, “Yes He Can: President Obama’s Power to Make an International Climate Commitment Without Waiting for Congress,” which argues that in Copenhagen Obama has all the power he needs under current law, quite apart from the will of Congress or the American people, to make a legally binding international commitment.  Unfortunately, under current law, the report is right.  I discuss that report and the larger constitutional implications of the modern “executive state” in this morning’s National Review Online.

There is enough ambiguity in the president’s remarks this morning to suggest that he may not be prepared to exercise the full measure of his powers.  But there is also enough in play to suggest that it is not only the corruption of science but the corruption of our Constitution that is at stake.

The Global Warming Shakedown

Pat Michaels and others are working heroically to save America from global central planning for purposes of combatting global warming (or climate change, or whatever they’re calling it now). But let’s also be thankful this holiday season for our Founding Fathers, who wisely created a system based on separation of powers. If the United States had a parliamentary system, there would be no hope of derailing some of the statist schemes being discusssed in DC, even if Pat worked 24 hours a day.

The secretary of state, for instance, is issuing pronouncements about putting American tapxayers on the chopping block to help finance $100 billion per year of new “climate change” foreign aid. This money can only be squandered, however, if the House and Senate agree to do so. That’s a real possibility, of course, but at least there’s some hope that common sense will prevail since the fiscal burden of government already is far too large.

Here’s a NY Daily News report on what’s happening in Copenhagen, including worrisome signs that politicians who don’t pay for their own travel are planning to make the rest of us pay more for ours:

The U.S. is prepared to work with other countries toward a goal of jointly mobilizing $100 billion a year by 2020 to address the climate change needs of developing countries,” Secretary of State Hillary Clinton said.

…While she would not disclose how much the U.S. would be contribution to the climate fund, Clinton said there would be a fair amount contributed to the pot that would be made available in 2020. The finances will reportedly be raised partially by taxing aviation and shipping, as proposed by the European Union.

Sorry to Keep Interrupting Your Folly with the Constitution, But…

…the Constitution!

ROUNDEDpocketConst_150Andy Smarick at the Fordham Foundation continues to simultaneously cajole and sympathize with U.S. Secretary of Education Arne Duncan as Duncan tries to formulate some sort of discernible parameters for what the federal government should and  should not do in education. Clearly, Smarick feels Duncan’s pain:

I have sympathy … because figuring out the right role for the federal government in education policy is no easy task. But I’ve been pointed and nagging because the Department needs to come up with a coherent position if it’s to sell an NCLB reauthorization plan.

Given his apparently long-standing suffering over this issue, it turns out that today is Smarick’s lucky day — I have an elixir that defines the only unshifting and unmuddled parameters of federal education policy possible: outside of Washington, DC, and federal properties like military installations, the federal government has no authority whatsoever to be involved in education! Article I, Section 8 of the Constitution makes this clear, including nothing about education among the specific powers it gives to the federal government.

And if that medicine isn’t strong enough,  the 10th Amendment doubles it, reiterating that the Constitution gives the feds only specific, enumerated powers:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Unfortunately, I’ve offered this potent treatment for Smarick (and Duncan’s) painful problem before and Smarick pretty much just flushed it down the toilet.  Last time, he simply ignored the overwhelming evidence I offered that federal involvement in education has been and will continue to be a bankrupting failure; declared it unrealistic to think that the feds would get out of education; and wondered aloud whether I might also want to get rid of federal entities like NASA. In other words, he completely dodged the critical question at hand: What is the proper federal role in education?

So here Smarick remains, floundering around with Duncan to determine what they think the feds should and should not be doing in education. And guess what they’ve come up with? The federal role should be anything and everything! It should be pushing whatever programs or reforms Washington deems “successful,” or anything for kids it declares “underserved,” or that has anything to do with “national” standards.

And what’s the role of states, school districts, schools, parents, and kids? To be ready to jump whenever and in whatever direction Washington tells them to:

Pieced together, a slightly clearer picture starts to emerge. If I’m reading it right, it’s something along the lines of “The feds will embrace national standards and assessments; invest in new ideas and successful practices; and allow states and districts to control most decisions unless underserved kids are getting hurt.”

If this is a faithful rendering of the Secretary’s view, the Department has a solid foundation on which to build. But huge questions remain: How far can the feds go with regard to disadvantaged students? How do you remain loose on means and still hold states accountable for billions of dollars? How does IDEA shift away from compliance? How does ED transition from a regulatory body to the NIH of education?

As I wrote above, developing a comprehensive, coherent philosophy on these matters is terribly hard, and we’re watching ED go through the sausage-making phase. I give them credit.

Let’s hope, when all’s said and done, that we look back on this progress like the Beatles Anthology—which shows how impeccable final products typically evolve from messy drafts — and not like the making of Chinese Democracy — a long, agonizing wait that ultimately leaves you wishing for more.

Now, I have to ask: Why would you ever, ever want to subject the nation and its children to a federal government that has potentially unlimited power in education and could very possibly produce calamitous results for all? And why would you want to force schools and children to sit atop a constantly quaking foundation, one subjected to perpetual and potentially disastrous lurching produced by the ever-changing political desires and needs of secretaries of education, presidential administrations, congresses, and self-serving politicians of all stripes?

Quite simply, there is no acceptable answer to that other than “I absolutely wouldn’t.” And that answer means that the only right answer to the question of what the federal government should do in education is “nothing.”

At some point, if we’re ever going to make any progress, people need to stop ignoring all the evidence and start dealing with reality.

Deck the Halls with Health Care Taxes

As Congress heads toward Christmas, debating an increasingly unpopular bill that will raise federal spending and taxes, Senate leaders are beating up on anyone — like Joe Lieberman — who seems to threaten quick passage of the bill. Next week, when senators want to get home for Christmas, the pressure on recalcitrant members to give in and vote will become even stronger.

And so, kids, gather around for a Christmas story from the olden days. Back in the last century, in the year 1982, the Washington establishment decided that the gasoline tax should be raised by a nickel a gallon. Ronald Reagan, Tip O’Neill, Bob Michel, Howard Baker, Bob Dole, Dan Rostenkowski — they all wanted it. But Senators Jesse Helms, Don Nickles, and Gordon Humphrey stood in the way. They filibustered right up to the night of December 23. Finally the Senate worked its will, and the tax increase passed.  Helms in particular was the subject of calumny from across the Washington establishment, politicians and media alike, both for opposing a much-needed tax increase and for cruelly delaying Christmas for the senators (while trying to preserve it for the taxpayers).

And how did the voters respond to “Senator No”? In a front-page article in the Washington Post of January 2, 1983, describing Helms’s drive home on December 23 after the grueling Senate debate, David Maraniss told the story:

Hours after his fortnight battle against the gasoline tax increase was over and lost, he was bone-tired and bleary-eyed as he drove down Interstate 95, and a few times during the five-hour trip his car lurched precariously toward the shoulder of the highway. Finally, when he reached the exit for South Hill, Va., he decided to pull over and make a pit stop at Hardee’s.

No sooner had the senior senator from North Carolina approached the counter of the fast-food establishment than a truck driver recognized his unforgettable mug. “Hey, there’s Jesse Helms,” said the trucker. Heads turned, mutters of awareness filled the room, and suddenly, spontaneously, some 15 or 20 fellow travelers were on their feet applauding.

“That,” Helms would say later, “was the first time I ever got a standing ovation at Hardee’s.” In fact, it was one of the few times he had received a warm reception anywhere during December.

He had left Washington with a few more nicknames attached to him by his enemies, and even some friends, who had been frustrated by his long, and in the end unsuccessful, attempt to talk the gasoline tax increase to death. “Scrooge,” they had called him, and the “Grinch Who Almost Stole Christmas.”

Where are the senators who will suffer the obloquy of the Washington establishment this Christmas to protect the taxpayers and earn a standing ovation outside the Beltway?

Food Stamps vs. Cash Welfare

A couple of weeks ago I discussed a New York Times report on soaring food stamp use. Yesterday, the New York Times reported that cash welfare use in New York under the federal Temporary Assistance for Needy Families program started to rise more recently. The Times calls this “something of a riddle” given that food stamp usage has been increasing throughout the recession.

But the Times solves the riddle when it acknowledges: “It is much simpler to receive food stamps than cash assistance.” The 1996 welfare reform that replaced the broken Aid for Families with Dependent Children with TANF imposed more stringent time limits and work requirements on recipients. By contrast, the 2002 farm bill expanded food stamp eligibility, increased benefits, and made it easier to claim benefits. The following chart shows the result:

200912_blog_dehaven2

A food stamp user interviewed by the Times explains:

“It used to be easier to go on cash assistance,” she said as she left a food stamp office in Brooklyn this month. “You didn’t have to go to work, you didn’t have to report every day to an office and sign in and sign out. Now, if you don’t go to those group job meetings in the mornings, they shut down your whole welfare case. So that’s why I just get food stamps.”

In the Times article on food stamps, the USDA official in charge of the program was reportedly happy that usage was up and even wanted to see continued growth. The new article quotes an advocate for government welfare programs with similar feelings on cash welfare:

“It should be considered a positive thing and a natural thing as we start to head into a 10 percent overall unemployment rate in New York,” said David R. Jones, the president and chief executive of the Community Service Society, one of the city’s oldest social services agencies for low-income people. “If unemployment rates continue to spiral upward in New York, and you didn’t see an increase in welfare, something would be seriously wrong. That would mean that we weren’t getting people on relief quickly enough.”

The Community Service Society’s website says its mission “is to identify problems which create a permanent poverty class in New York City, and to advocate the systemic changes required to eliminate such problems.” But the federal welfare system has created a permanent poverty class.

Michael Tanner got it right in his book, The Poverty of Welfare, that government officials and welfare activists have a vested interest in these programs:

Whatever the intention behind government programs, they are soon captured by special interests. The nature of government is such that programs are almost always implemented in a way to benefit those with a vested interest in them rather than to actually achieve the programs’ stated goals. Among the non-poor with a vital interest in anti-poverty programs are social workers and government employees who administer the programs. Thus, anti-poverty programs are usually more concerned with protecting the prerogatives of the bureaucracy than with fighting poverty.