July 2016

Listening to Donald Trump’s speech at the Republican National Convention last week, one could hear ghostly voices of America’s political past – from the turgid populism of Louisiana’s “Kingfish” Huey Long, to the law and order steeliness of Richard Nixon; and, even, ironically, to the cadent droning of Bill Clinton, the master of the “laundry list” State of the Union speech. And, the quality of the Trump rhetoric aside, one could even glimpse some of the aura of “royalty” that so enamored John F. Kennedy to voters nearly six decades ago.

Depressingly absent, however, from this collage of former presidential aspirants and American political figures, was any hint of the inspirational rhetoric and the philosophical coherence of conservative icons of old – Ronald Reagan, William F. Buckley, and Barry Goldwater, to name just a few. Yet, such is the current state of the GOP.

It is also the challenge now facing the Grand Old Party’s 2016 presidential nominee.

For conservatives, there is no question that between Trump and Hillary Clinton, he is the superior candidate. But, neither candidate is running in a vacuum, and for Trump to win the general election, he must run against Hillary as much as he must run for the votes of Republicans not yet sold on the fear-based foundation of his campaign. As Ross Perot — another ghost of campaigns past — proved to the GOP in 1992, it is not enough for the Republican nominee to simply court rank-and-file Republicans to carry the general election.

The reason Trump is preferable to Hillary is simple, even to those Republicans still on the fence. Despite his populist rhetoric and spotted past, Trump at least shows some degree of promise that he can be the conservative leader America needs. His turn-around on the Second Amendment – moving from pro-gun control to vocal advocate of the right to keep and bear arms – illustrates what is possible when he turns off his mouth for a few minutes, and reflects on why the GOP traditionally has been the party of individual liberty and the Constitution.

This is how Trump can win — by combining the voices that gave him the nomination with the philosophy that can give him the election.

For better or worse, Trump’s strongman populism will remain an unshakable centerpiece of his campaign; it reflects who he is and how he wishes to be perceived. Rather than attempt to change this, he should learn to use it to his advantage. For example, instead of repetitive ranting about America losing jobs overseas and suggesting the fix is using federal power to punish CEOs, Trump should argue the best way to save American jobs is to reduce the tax and regulatory burdens that drive jobs out of the country. Or, rather than boasting about being a head-cracking “law and order” candidate reminiscent of Nixon’s fear-mongering persona, Trump could take up the torch of criminal justice reform that would free up resources to focus on serious violent crime, with the added bonus of potentially winning minority votes as well.

On many issues where Trump has let his populism overtake traditional conservative principles, there exists an alternative narrative that satisfies both the needs of his base, and the demands of a conservative electorate still unsure about the new GOP standard bearer; but it will take at least a little finesse to get to those voters. On the positive side, it is not as if Trump has ever let a reverse-course on an issue bother him, especially if it could put him a step closer to winning.

Trump stands at a crossroads in his campaign; and hoping Hillary and the Democrats continue to collapse is not a reliable or winning strategy for victory in November. Taking the mantel of a conservative standard bearer for the party, is.

Huey Long once bragged that he could “frighten or buy ninety-nine out of every one hundred men.” Earlier, as a contender for the Republican nomination, Trump might have made a similar claim to rally his boisterous supporters. But, if he wants to win the general election, Trump must dispel the ghosts of the past, and attempt instead to “sway or inspire ninety-nine out of every one hundred conservatives.” He has his work cut out for him.

Amidst Convention Hooplah, A Key Legislative Victory

With the attention of virtually all media and political pundits centered on the major political conventions, it is important we not lose sight of the fact that many lawmakers from both parties are continuing their relentless drive to increase the power of the federal government to snoop. Thankfully, a group of pro-freedom members of the House of Representatives are looking out for our interests. For example, just prior to the Congress adjourning for the summer recess earlier this month, an important but little-noticed vote occurred that stopped a move to give the Feds even more power to gather private information on individuals’ financial transactions.

The offending proposal was H.R. 5606, authored by Republican Rep. Robert Pittenger and Democrat Rep. Maxine Waters. Their bill would have amended Section 314 of the USA PATRIOT Act ostensibly to “facilitate better information sharing to assist in the fight against the funding of terrorist activities, and for other purposes.”

In fact, the bill’s real purpose had nothing at all to do with actual terrorism, but everything to do with Uncle Sam’s insatiable appetite for access to financial information of whatever sort on everyone.

By way of background, and as originally drafted, Section 314 of the USA PATRIOT Act was designed to help prevent money laundering and other financial backing of terror plots, by making it easier for federal law enforcement officials to investigate truly “suspicious” financial activity reported to them. Yet, like most USA PATRIOT Act powers that have been used overwhelming in non-terror related cases, the government saw a window of opportunity to expand these financial powers to encompass other “unlawful activity.”

It is axiomatic that, freed from what the government considers the unnecessary “red tape” normally required by the 4th Amendment before its agents can access private records, government snoops find their job of investigating alleged criminal activity far easier. Hence, the constant effort to expand the universe of “exceptions” to the Fourth Amendment’s requirements. Thankfully, a sufficient number of House members who understand the importance of maintaining the robust protections embodied in the Fourth Amendment, were able to derail the latest effort to weaken its protections.

As Rep. Justin Amash and his colleagues in the Republican Liberty Caucus rightfully pointed out in opposing the Pittenger-Waters bill, this sidestep of due process would “permit the government to demand information on any American from any financial institution merely upon reasonable suspicion.” One need only look at law enforcement’s problematic track record with civil asset forfeiture at all all levels of government, to see where such a shortcut would end for many innocent Americans wrongfully suspected of unlawful activity. Simply trying to make transactions easier on your local bank teller could suddenly have your life savings seized by the IRS, as North Carolina convenience store owner Lyndon McLellan discovered.

Due process provided under the Fourth Amendment is a crucial component of our criminal justice system; it establishes a clearly defined process the government must obey in pursuing and investigating crimes. This vital part of our Bill of Rights makes it intentionally difficult for the government to invade an individual’s privacy, by limiting law enforcement’s ability to engage in investigative fishing expeditions that target innocent individuals like McLellan.

Nearly 100 years ago, political essayist H.L. Mencken commented that “the American has grown so accustomed to the denial of his constitutional rights…by swarms of spies, letter-openers, informers and agents provocateurs that that he no longer makes any serious protest.” One would have hoped that in the years since 9/11, as we’ve watched the new authorities given to the government to prevent terrorism expanded to areas far beyond their intended scope, we would have learned not to so quickly jump to give the Feds more power. Instead, many Republicanand Democrat lawmakers seem determined to prove Mencken right, time and time again.

Fortunately, there still exist elected leaders like Amash and his colleagues in the House Liberty Caucus who remember their oath to uphold the Constitution. And, even small victories such as that last week in defeating H.R. 5606, deserve to be recognized for their importance, if not rarity.

Despite the shock and surprise with which many observers reacted to last month’s “Brexit” vote, the result of which begins the United Kingdom’s divorce from the European Union, the seeds of the breakup were long in the making – and entirely understandable. Notwithstanding efforts by some pro-EU proponents to paint the “Leave” camp as being filled with anti-immigrant racists, polls in the U.K. show that the primary motivation for “Leave” voters was concern over the loss of political, cultural, and economic identity that continued membership in the European Union was accelerating — in a word, loss of sovereignty.

The document at the heart of the European Union’s structure is a multi-hundred page collection of mandates, regulations, and details that the 20th-Century American cartoonist Rube Goldberg would have loved for the convoluted manner in which it seeks to control virtually every facet of political, cultural and economic activity in every part of every nation that signed it. This is the infamous “Treaty of Lisbon,” adopted as the effective Constitution of the EU in 2009. It is at the heart of the Brexit vote. It is a document that every true student and supporter of the Constitution of the United States knows represents the antithesis of individual liberty.

The U.S. Constitution is a short document that provides a framework for the governance of a people to meet changing circumstance and conditions while preserving fundamental liberty; it is unique and has lasted for two-and-a-quarter centuries for that very reason. The Treaty of Lisbon, just six-and-a-half years young, on the other hand, is a massive compendium of rules and edicts cobbled together by a committee of bureaucrats with the goal of prescribing how the individuals and their governing bodies must behave, and regardless of changing circumstances or individual choice.

Small wonder a majority of the voters in Britain – which nation’s formative charters included the Magna Carta that inspired our own Founding Fathers – never quite took to being told by a bunch of bureaucrats in Brussels that British laws, customs and culture were inferior to their collectivist mindset.

Those who drafted and voted on the U.S. Constitution understood that fundamental liberty is based on such universal and timeless principles as “due process” and “equal protection of the law” for all. Those and other fundamental, pre-existing rights were therefore guaranteed in the document as against government limitation. The drafters of the Treaty of Lisbon, clearly failing to understand that the best government is “limited government,” took the opposite approach; crafting a governing document that dictates, among hundreds of other requirements, that:

Citizens must extend regard to the “welfare . . . of animals,” since animals are “sentinent beings”
“Occupational hygiene” is to be fostered
“Equal pay” is to be afforded for “equal work” of “equal value”
It is desirable to make it “easier for the underrepresented sex [not defined] to pursue vocational activity . . . to compensate for disadvantage in professional careers”
A “European Social Fund,” among other things, fosters and “facilitate[s] adaptation to industrial changes and to changes in production systems . . . through vocational training and retraining”
Member states must “contribute to the promotion of European sporting issues . . . by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen”
Members must “contribute to the flowering of the cultures of the Member States” and especially “the knowledge and dissemination of the culture and history of the European peoples”
“Obviating sources of danger to the physical and mental health” is required
The massive bureaucracies the EU has maintained to implement, monitor, and enforce the thousands of mandates such as those few noted above, keeps tens of thousands of bureaucrats busy and well-paid through levies on the U.K. and the other 27 members of the Union.

The charge to these bureaucrats is mind-numbing. For example, in order to effectuate the “Social Policy” that is the core of the Treaty’s effort to communalize culture and politics across the Union, its regulators are authorized to: “[promote] employment, improved living and working conditions, so as to make possible their harmonization while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.” Gobbledygook taken to a new level.

One the most coveted cards available to a player of the classic board game, Monopoly, is the “Get Out of Jail Free” card that entitles the lucky bearer to escape the loss of money that comes from sitting in “jail” for three throws of the dice. In real life, and for the average citizen who violates federal law, the reality is quite different — except, of course, if you happen to be Hillary Clinton and you count the president of the United States and the leadership of the Department of Justice among your cronies.

Yesterday, after what FBI Director James Comey said were many “thousands of hours of effort” by many federal investigators to determine whether to recommend prosecution of Ms. Clinton for violating federal laws relating to the mis-handling of classified, national security information over her unsecured e-mail server(s), Comey punted; or, more accurately, he laid down.

Despite finding that many of the e-mails in question had been destroyed by Team Clinton (including many by Clinton’s private lawyers in the early stages of the government’s investigation), the FBI Director decided the course of passivity was more appropriate than one that would involve the hard, but by no means insurmountable, task of holding Clinton accountable.

While Comey said his agents determined – correctly and obviously — that some of the e-mails had been deleted “intentionally,” the Director strangely then concluded that this was okay since none were determined to have been deleted to “conceal them.” Say what? Would Comey have us believe Clinton’s handlers and lawyers deleted them for the fun of it; or by mistake; or perhaps to save capacity on a computer hard drive as part of an effort to increase the efficiency of their boss’ electronic communications?

Astonishingly, Comey then compounds the problem by noting in passing, almost blithely, that other “work-related e-mails” are “gone because [Clinton’s lawyers] deleted” them and then deliberately “cleaned their devices in such a way as to preclude complete forensic recovery.” If this bothers the Director, he doesn’t let on in his public statement.

Apparently, offenses such as destruction of evidence, obstruction of justice, conspiracy, and even RICO – which leap readily to mind on first reading the FBI Director’s statement of findings, were deemed by the Department of Justice as perhaps just too difficult, or simply not appropriate for such esteemed potential defendants as Hillary Clinton and those operating in her behalf.

FBI Director Comey asks that we accept his Bureau’s weak-kneed conclusions as affording the American people “reasonable confidence” that no one on Team Hillary engaged in any “intentional misconduct.” We are to simply share the lame conclusions that Hillary and her minions were just “careless.”

“Careless.”

If, as the presidentially-appointed United States Attorney in Atlanta from 1986 to 1990, I had investigated cases of suspected criminal activity and found evidence similar to that set forth by Comey here, and declared such cases were simply evidence of “carelessness,” I suspect my tenure as the U.S. Attorney would have been far shorter than it was.

And speaking of federal prosecutions, one of the cardinal rules of serving in that job, is to maintain control of the cases being investigated by the FBI and other federal investigative agencies; and not allow the investigators to decide whether or not to move forward with a prosecution – a responsibility that must remain firmly in the hands of the prosecutor. Yet here, on Comey’s watch and that of this titular boss, Attorney General Loretta Lynch, the investigator is the one deciding whether to prosecute. Comey gratuitously concludes that since in his view “no reasonable prosecutor would” bring such a case, that’s the end of the matter and Clinton gets her free pass.

While it may be true that many prosecutors with whom Comey spoke would prefer not to aggressively pursue such a case as this, many skilled and well-seasoned federal prosecutors with whom I have worked would be very comfortable prosecuting a case given the evidence that the FBI has noted publicly it had uncovered here. However, it undoubtedly suits Lynch and President Obama to have Comey make that decision for them, so they can wash their hands of it, and get back to the business of greasing the skids for Hillary Clinton to win in November and give us four more years of the same.