Mid-Day Digest

Dec. 10, 2018

THE FOUNDATION

“Stability in government is essential to national character and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society.” —James Madison (1788)

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IN TODAY’S EDITION

IN BRIEF

Mueller, Comey, and the Clinton Foundation

Special Counsel Robert Mueller released court filings on Friday against three of President Donald Trump’s former associates — Michael Flynn, Paul Manafort, and Michael Cohen. Once again there was no evidence of Trump colluding with Russia, the ever-popular narrative justifying the creation of the special counsel. The news prompted Trump to declare, “Totally clears the President. Thank you!” But it’s not all roses for Trump, as it now appears Mueller may be putting together a case against Trump for violating campaign-finance laws. That’s problematic for Trump, but it would be a tough issue for Democrats to use as a case for impeachment.

Meanwhile, the one who initiated the whole collusion investigation, former FBI Director James Comey, testified before the House Judiciary and House Oversight and Government Reform Committees on Friday. Comey imitated Hillary Clinton in having serious issues with selective memory, and he again defended her, patently dismissing any suggestion that her illegal email practices merited prosecution.

“[Comey’s] memory was so bad I feared he might not remember how to get out of the room after the interview,” one lawmaker noted. “It was like he suddenly developed dementia or Alzheimer’s, after conveniently remembering enough facts to sell his book,” quipped another congressman. Interestingly, Comey was able to remember and admit that the infamous Christopher Steele dossier was never verified before or after it was used to get a FISA warrant to surveil Trump’s campaign.

Regarding Clinton, Rep. Sheila Jackson Lee (D-TX) asked Comey, “Is there any need to further investigate Hillary Clinton’s emails based upon the decision that you made not to prosecute?” Comey replied, “Not that I can possibly see.” Jackson Lee further asked if Comey considered the case closed, to which he responded, “Yes. There’s no serious person who thinks there’s a prosecutable case there.”

Was Comey’s answer a jab aimed at U.S. District Court Judge Royce Lamberth, who just the day before allowed for an additional investigation into whether Clinton’s use of a private email server was a deliberate attempt to bypass the Freedom of Information Act? It appears that Comey’s dismissive comment was intended to discredit the idea that his investigation into Clinton’s emails was anything but thorough, complete, and aboveboard.

And speaking of Clinton’s emails, the investigation into the real collusion may just be heating up. Three whistleblowers have come forward with hundreds of pages of evidence of wrongdoing by the Clinton Foundation. Sources say there is evidence pointing to the Clinton Foundation’s misappropriating funds and engagement in pay-to-play promises with donors during Clinton’s tenure as secretary of state. As we’ve said all along, those shenanigans explain why Clinton was so keen on setting up her private email server in the first place.

Rep. Mark Meadows (R-NC), chairman of the House Oversight Subcommittee on Government Operations, announced that the committee would hold an investigative hearing into the issue this week. We hope more light will finally be shined on this long-brewing scandal.

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Big Personnel Changes Afoot in the White House

Nate Jackson

Any administration faces turnover, especially after elections. President Donald Trump’s White House is no different in that regard. There were three notable changes in recent days: William Barr for attorney general, John Kelly’s pending departure as chief of staff, and Heather Nauert as U.S. ambassador to the United Nations.

Though all the media attention is focused on John Kelly, Barr is arguably the most consequential. Barr was the attorney general for the late George H.W. Bush, and he will bring much-needed stability to a position most recently held by Jeff Sessions.

The elephant in the room is Robert Mueller’s Russia investigation. Barr and Mueller go way back, as Mueller served as chief of the Justice Department’s Criminal Division during Barr’s first tenure as AG. Given Sessions’s recusal from all things Russia, Barr’s active participation — and Mueller once again reporting to him — will be consequential. Barr has questioned Mueller’s loading his team with Democrat donors. He defended Trump for firing Mueller’s pal James Comey and former Acting AG Sally Yates, and he noted that Hillary Clinton’s shady dealings regarding Uranium One could merit further investigation. All that already makes him a target for Democrat opposition. Yet Barr’s experience and history make him well-suited to restore order at the Justice Department.

Did we mention he plays the bagpipes?

Speaking of restoring order, former Marine Gen. John Kelly did yeoman’s work on that front as Trump’s chief of staff. Finding a suitable and capable replacement isn’t going to be easy.

Kelly helped maintain better order and discipline in the White House, plugging the frequent leaks that plagued his predecessor and solidly managing processes, meetings, and information. And while no one can completely stem Trump’s worst self-defeating impulses, Kelly made significant headway. That said, he lacked the political instincts Trump wanted in advance of 2020. Still, Mark Alexander says, “Trump best not berate Gen. Kelly’s honorable service to our nation and his administration with a petulant social media post like his disgraceful remark last Friday about former Secretary of State Rex Tillerson.”

There is a quote attributed to the late President Ronald Reagan: “Some people live an entire lifetime and wonder if they have ever made a difference in the world, but the Marines don’t have that problem.” Indeed, Gen. Kelly doesn’t have that problem. After enlisting during Vietnam, serving the nation as a Marine for more than 40 years, losing a son who gave his life as a Marine in Afghanistan in 2011, and then serving the president for the last two years, the nation owes Kelly an enormous debt of gratitude.

Finally, Heather Nauert will soon take over for Nikki Haley as UN ambassador, itself a thankless job that involves regularly rebuking tinpot dictators and globalist “allies” at the United Nations while often standing alone for Liberty. Haley was a stalwart defender of American interests and she will be missed. Nauert, a former Fox News journalist, has worked at the State Department for the last two years and reportedly has a strong relationship with Secretary of State Mike Pompeo. Given that she’s an otherwise largely unknown quantity, we hope at least that unified front will be helpful in extending Haley’s record.

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ON THE WEB TODAY

BEST OF RIGHT OPINION

For more of today’s columns, visit Right Opinion.

TOP HEADLINES

  • Ninth Circuit Court denies Trump bid to reinstate asylum ban (The Hill)
  • Migrants in Tijuana trickling over and under wall (Associated Press)
  • Huge New Jersey ICE raid nets Interpol suspects, MS-13 members (Hot Air)
  • Trump backs $750 billion defense budget request to Congress (Reuters)
  • Gen. Mark Milley slated to be next chairman of the Joint Chiefs of Staff (The Washington Times)
  • Record 156,795,000 employed in U.S.; 13th record-breaker under Trump (CNSNews)
  • Alexandria Ocasio-Cortez violated House ethics — and she hasn’t even been sworn in yet (Townhall)
  • Theresa May delays parliamentary vote on Brexit (NBC News)
  • Screen time changes structure of kids’ brains (Bloomberg)
  • Humor: Oscars to be hosted by boom box playing inoffensive, calming ambient noise (The Babylon Bee)
  • Policy: The myth of ObamaCare “sabotage” (Washington Examiner)
  • Policy: How to defuse the “Fight for $15” (E21)

For more of today’s news, visit Patriot Headline Report.

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TODAY’S MEME

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For more of today’s memes, visit the Memesters Union.

TODAY’S CARTOON

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For more of today’s top cartoons, visit the Cartoons archive.

Do This Today

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FEATURED ANALYSIS

Double Take on the Fifth Amendment

Robin Smith

A Supreme Court case is getting a great deal of attention in part because it would be contrary to 170 years of precedent and practice. But more attention-getting, it may have an impact upon Robert Mueller’s case involving Paul Manafort in the vastly overreaching special investigation to determine the extent of Russian interference in the 2016 election.

Oral arguments were heard Thursday in Gamble v U.S. The case involves an Alabama man who was arrested in 2015 for crimes that involved the illegal possession of a handgun. Terrence Gamble, a felon who had already served time in prison for a separate crime, faced both state and federal charges for this second failure to observe laws. The State of Alabama sentenced Gamble to one year in prison while an additional federal charge yielded a 46-month sentence on top of that. Gamble appealed this second sentence to the Eleventh Circuit Court, citing the Fifth Amendment.

The relevant text states, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” Known more often for “pleading the Fifth” to avoid self-incrimination, the amendment, ratified with the original 10 in 1791, provides protections for citizens to prevent multiple trials for the same charge or offense. Specifically, one accused cannot be retried following an acquittal, following a conviction (without reversal on appeal), or after certain mistrials.

Gamble’s legal team argues that federalism is permitting the duplication of the conviction and the punishment on the same charge. Yet because American courts have both a state and federal structure, such dual prosecutions are frequent occurrences.

Each legislated body of law — one federal, the other state — governs the structure of the separate courts, their operations, jurisdictions, codes, regulations, and sentencing, and each is treated as a separated sovereign. Hence, the separate sovereigns doctrine permits the offense, in the case of Gamble, to have been acts against two separate sovereigns. Citing legal precedents in the appeals, in pre-Civil War era rulings the Supreme Court held to the standard of two different offenses. The Court, again, ruled in 1922 in United States v. Lanza that “an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both and may be punished by each.”

The Wall Street Journal’s analysis of this case further includes Heath v Alabama (1985), which notes, “An offence, in its legal signification, means the transgression of a law. Consequently, when the same act transgresses the laws of two sovereigns, it cannot be truly averred that the offender has been twice punished for the same offence.”

SCOTUSblog reviewed oral arguments and concluded that the “majority appears ready to uphold [the] ‘separate sovereigns’ doctrine.” That analysis offered a bit of a play-by-play description of arguments and verbatims of the justices and the arguing attorneys. The conclusion here was pretty simple: It’s doubtful that the 170-year practice and precedent will be overturned. Yet Justices Ruth Bader Ginsberg and Clarence Thomas spoke in favor of a review of the doctrine. Ginsberg has previously suggested a reconsideration of the sovereigns doctrine, while Thomas voiced support of a “fresh examination” of the almost two-centuries-old legal practice.

Interestingly, all nine of the justices come from Ivy League law schools, where the discussion of double jeopardy is not a new one. Writings such as the Note from The Yale Law Journal, November 2014 edition, strain to separate the question to argue the duplication of punishment: “When the interests of a sovereign state are partially vindicated, the sovereign should be able to impart only as much additional punishment as is necessary to fully vindicate its interests.”

It’s almost amusing to see the mainstream media and the political Left arguing against the cause of a minority stopped for a traffic violation that resulted in a felony gun charge. Why? Because if the Court holds the current observance of the separate sovereigns doctrine regarding the Alabama man’s case, Paul Manafort, the former campaign chairman for Donald Trump who is likely to face charges by Robert Mueller’s federal team for everything except collusion with the Russians, would still likely face state charges on tax evasion or corporate fraud, despite a possible pardon from Trump. The Left can’t abide that.

The Supreme Court ruling is expected sometime in 2019. Based on opinions and analysis, it appears highly unlikely that such longstanding precedent would be overturned. Yet it is causing a double take on the Fifth Amendment and yielding some unlikely allies in wishing for a new look at an old doctrine.

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OPINION IN BRIEF

Kay Coles James: “Immediately upon taking office, President Trump’s Cabinet began dismantling Obama’s climate legacy. Economically and environmentally, we’re better off without it. As the French very well know, energy taxes hit families and businesses multiple times over. We all feel the pain of higher energy prices directly at the meter and the pump, and indirectly at the grocery store and through almost all the goods and services we pay for, because energy is such a critical input to nearly every product businesses make. Add it all up, and you get fewer employment opportunities and a weaker economy. And all for what? A change in the global temperature would be practically undetectable. All economic pain and no environmental gain. No wonder the French are dissatisfied and Macron’s climate policies are wildly unpopular. Without these expensive, ineffective policies, we’ll be wealthier and have more resources to tackle whatever challenges come our way. The acting EPA administrator has a Herculean task in correcting an agency that had run rogue for eight years under the Obama administration. But families and businesses across the country will feel the impact, and be thankful for it.”

SHORT CUTS

The Gipper: “We don’t have a trillion-dollar debt because we haven’t taxed enough; we have a trillion-dollar debt because we spend too much.”

Upright: “Young Democrats who line up behind the likes of Bernie Sanders and Alexandria Ocasio-Cortez are in for everything and anything so long as it’s free. The only item they seem ready, even eager, to forego is freedom.” —Burt Prelutsky

Braying Jackass: “I’m so conflicted on this issue because on the one hand [devastating disasters are] good news in a sense that we can feel [climate change] in our lives now — that we’re beginning to see floods and wildfires and all sorts of things that are directly being produced by the forces at work here in our changing climate. And yet, at the same time, scientists have always said to us that by the time we actually tangibly feel it in our own lives, it’s kind of too late. And so, there’s a real sort of real mixed blessing here in the fact that we’re actually experiencing it day-to-day now.” —NBC’s Jacob Ward

Hyper-drooling: “There’s a very real prospect that on the day Donald Trump leaves office, the Justice Department may indict him.” —Rep. Adam Schiff (D-CA)

Friendly fire I: “Part of being an elected official is not only taking strong political positions and executing them fairly, it’s also being able to manage the people you entrust with responsibility. In this case, [Sen. Kamala] Harris has fallen short. Harris owes the voters more than just a four word denial on the steps of the U.S. Senate. She should fully explain her relationship with [Larry] Wallace, and, by extension, her staff and why it insulated her from an issue upon which she has taken a leading national role.” —Sacramento Bee editorial board showing vexation with Harris’s supposed cluelessness regarding harassment by a now-fired aide

Friendly fire II: “[Sen. Elizabeth] Warren missed her moment in 2016, and there’s reason to be skeptical of her prospective candidacy in 2020. … While Warren is an effective and impactful senator with an important voice nationally, she has become a divisive figure. A unifying voice is what the country needs now after the polarizing politics of Donald Trump.” —Boston Globe editorial

And last… “People keep saying you shouldn’t be penalized for old opinions. You shouldn’t be penalized for your opinions now! You have a perfect right to disapprove of homosexuality or heterosexuality or anything else. Censorship won’t create a world of tolerance, just a world of lies.” —Andrew Klavan

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Semper Vigilans Fortis Paratus et Fidelis

Nate Jackson, Managing Editor
Mark Alexander, Publisher

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