Former Scott Walker Aide Victim of Unconstitutional E-Fishing Expedition

When Kelly Rindfleisch became a policy analyst for Scott Walker, and then his deputy chief of staff, she didn’t expect all of her personal emails to be the subject of a search into the criminal investigation of another person, but that’s Wisconsin politics for you.

In 2010, state officials opened a “John Doe” investigation (essentially Wisconsin’s version of a grand jury inquiry) into another Walker staffer, then-Chief of Staff Tim Russell. In their investigation, law enforcement sought and obtained a warrant for Google and Yahoo to turn over all ~16,000 emails held on Rindfleisch’s personal email account in order to find possibly incriminating emails sent between her and Russell—no narrowing, minimization, key-word searching, or independent third-party review required.

Through their fishing expedition, prosecutors were able to find enough evidence to support a charge against Rindfleisch, claiming that the incriminating content of those emails was in “plain view” subsequent to the incredibly broad search. Due to the unconstitutional search, Rindfleisch eventually plead guilty to misconduct in public office.

The Wisconsin Court of Appeals upheld the validity of the search warrants, and the Wisconsin Supreme Court declined to hear the appeal—leaving law enforcement with carte blanche to rummage through personal emails. Rindfleisch’s case provides an excellent vehicle for the U.S. Supreme Court to address the degree to which the Fourth Amendment requires a warrant for searching electronic data, tailored to probable cause. That’s why Cato filed a brief, joining the DKT Liberty Project, supporting Rindfleisch’s cert petition.

Your Pro-National-ID Appropriators

Every year around this time, a ritual is underway that quietly moves the ball forward on creating a U.S. national ID. That ritual is the annual appropriations process in Congress, which doles out money for everything the government does—including weaving together a system that may one day identify, track, and control each one of us.

As I noted last year in my policy analysis, REAL ID: A State-by-State Update, DHS has spent over a quarter billion dollars on REAL ID since the 2008 fiscal year. Beginning in 2012, grants supporting state efforts to implement REAL ID were moved into the State Homeland Security Grant Program, which fairly well keeps the amounts hidden from you and me. But appropriators at any time could deny the expenditure of funds to implement REAL ID.

Why don’t they do it? Judging by their records, appropriators are a strongly pro-national-ID group. Appropriations committee members who were in Congress when it passed tended to favor the national ID law—Republicans almost without exception. (And because Republicans chair the appropriations committees in both the House and Senate, they are currently the ones to watch.)

House members serving in 2005 had four chances to vote against the national ID law, and senators had two: First, when REAL ID passed the House on a test vote as H.R. 418. Second, when the rule governing debate in the House on H.R. 1268 passed by voice vote, attaching REAL ID to this spending bill. Third, when H.R. 1268 passed the House and Senate. And, fourth, when the conference report on H.R. 1268 passed the House and Senate.

The Pros and Cons of the Iranian Nuclear Deal

Earlier today in Vienna, international negotiators reached a deal with Iran over its nuclear program. The New York Times reports that the agreement will eventually lift oil and financial sanctions, “in return for limits on Iran’s nuclear production capability and fuel stockpile over the next 15 years.” The international restrictions on Iranian arms exports will remain in place for up to 5 years, and the ban on ballistic missile exports could remain for up to 8 years. 

In a televised statement this morning, President Obama defended his decision to engage in the negotiations “from a position of strength” and assured the American people that, under the deal, “Iran will not be able to achieve a nuclear weapon.” His opponents are sure to challenge both assertions. 

The deal, Obama said, “is not built on trust, it is built on verification.” Those verification provisions appeared to have been one of the final sticking points in the negotiations. According to the Associated Press, the Iranians agreed to allow inspection of Iranian military sites, “something the country’s supreme leader, Ayatollah Ali Khamenei, had long vowed to oppose,” but such inspections are not the surprise, snap inspections that some had pushed for. 

The focus now turns to the Senate, which has 60 days to review the agreement. Senators could vote to block it, but Obama has already pledged that he would veto any legislation that prohibits the deal’s implementation. He has a reasonably strong hand to play. Even if all Senate Republicans vote to kill the deal, opponents would need at least a dozen Senate Democrats to vote with them in order to override the president. 

Expect the details of the nearly 100-page document to come under close scrutiny, even though many opponents don’t appear to believe that the specifics matter that much. For them, nearly any deal is a bad deal. 

The French Revolution and Modern Liberty

Today the French celebrate the 226th anniversary of the storming of the Bastille on July 14, 1789, the date usually recognized as the beginning of the French Revolution. What should libertarians (or classical liberals) think of the French Revolution?

The Chinese premier Zhou Enlai is famously (but apparently inaccurately) quoted as saying, “It is too soon to tell.” I like to draw on the wisdom of another mid-20th-century thinker, Henny Youngman, who when asked “How’s your wife?” answered, “Compared to what?” Compared to the American Revolution, the French Revolution is very disappointing to libertarians. Compared to the Russian Revolution, it looks pretty good. And it also looks good, at least in the long view, compared to the ancien regime that preceded it.

Conservatives typically follow Edmund Burke’s critical view in his Reflections on the Revolution in France. They may even quote John Adams: “Helvetius and Rousseau preached to the French nation liberty, till they made them the most mechanical slaves; equality, till they destroyed all equity; humanity, till they became weasels and African panthers; and fraternity, till they cut one another’s throats like Roman gladiators.”

Key to the Bastille at Mount Vernon

But there’s another view. And visitors to Mount Vernon, the home of George Washington, get a glimpse of it when they see a key hanging in a place of honor. It’s one of the keys to the Bastille, sent to Washington by Lafayette by way of Thomas Paine. They understood, as the great historian A.V. Dicey put it, that “The Bastille was the outward visible sign of lawless power.” And thus keys to the Bastille were symbols of liberation from tyranny.

Traditionalist conservatives sometimes long for “the world we have lost” before liberalism and capitalism upended the natural order of the world. The diplomat Talleyrand said, “Those who haven’t lived in the eighteenth century before the Revolution do not know the sweetness of living.” But not everyone found it so sweet. Lord Acton wrote that for decades before the revolution “the Church was oppressed, the Protestants persecuted or exiled, … the people exhausted by taxes and wars.” The rise of absolutism had centralized power and led to the growth of administrative bureaucracies on top of the feudal land monopolies and restrictive guilds.

The economic causes of the French Revolution are sometimes insufficiently appreciated. In his book The French Revolution: An Economic Interpretation, Florin Aftalion outlines some of those causes. The French state engaged in wars throughout the 17th and 18th centuries. To pay for the wars, it employed complex and burdensome taxation, tax farming, borrowing, debt repudiation and forced “disgorgement” from the financiers, and debasement of the currency. Lord Acton wrote that people had been anticipating revolution in France for a century. And revolution came.

Liberals and libertarians admired the fundamental values it represented. Ludwig von Mises and F. A. Hayek both hailed “the ideas of 1789” and contrasted them with “the ideas of 1914” — that is, liberty versus state-directed organization.

The Declaration of the Rights of Man, issued a month after the fall of the Bastille, enunciated libertarian principles similar to those of the Declaration of Independence:

1. Men are born and remain free and equal in rights… .

2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression… .

4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights… .

17. [P]roperty is an inviolable and sacred right.

President Obama Announces Drug Sentence Commutations

Today President Obama announced that 46 non-violent drug offenders will have their sentences commuted and be released this year.  The announcement comes ahead of President Obama’s speech on sentencing reform later this week from a prison in Oklahoma.

The vast majority of the offenders were convicted of cocaine offenses, along with a handful of marijuana cases and some general “controlled substance” violations.  The lowest initial sentence among the 46 was 15 years, while several received life sentences.  In issuing the commutations the White House noted that, due to recent sentencing reforms, these sentences are out of step with the sentences the offenders would receive for the same violations today:

These unduly harsh sentences are one of the reasons the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system. Today, he is continuing this effort by granting clemency to 46 men and women, nearly all of whom would have already served their time and returned to society if they were convicted of the exact same crime today.

The list of recipients, along with their offenses, can be found here.  

Chinese Tires Case Latest Abuse of the Trade Remedy Laws

Washington’s protectionism lobby – that conspiracy of interests, which includes certain members of the House and Senate, steel and other import-competing producers, organized labor, and creative trade lawyers existentially determined to broaden the definition of unfair trade both statutorily and in the public’s mind – succeeded in extracting rents from President Obama and congressional Republican leadership in the deal that produced Trade Promotion Authority last month.

In addition to reauthorizing Trade Adjustment Assistance, which after 53 years of failure as economic policy has succeeded only at reinforcing the myth that job loss due to trade is especially problematic, Congress passed and the president enacted the American Trade Enforcement Effectiveness Act, which reduces the burden of proof on domestic industries seeking protection from import competition under the U.S. Antidumping and Countervailing Duty laws.

Hamilton’s Good for the Ten-Spot

I recently objected to Treasury Secretary Jack Lew’s proposed demotion of Alexander Hamilton on the ten-dollar bill. Hamilton was not only the first and most distinguished Treasury Secretary, but was also an accomplished professional in many other fields outside the confines of finance.

During his varied career, Alexander Hamilton was a profound journalist. His most famous journalistic project was a series of 85 opinion pieces that called for the ratification of the Constitution. These essays are called The Federalist Papers, and are the most cited sources by the U.S. Supreme Court. The Federalist Papers were published in 1787 and 1788 in New York City’s Independent Journal. These important essays — written under pseudonyms by Alexander Hamilton, James Madison and John Jay — were of very high quality and set the stage for the Constitutional Convention and the resulting product.